NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

DONALD W. ZAPPLEY, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2011-5075 

__________________________ 

Appeal from the United States Court of Federal 

Claims in Case No. 10-CV-299, Judge Francis M. Allegra 

_________________________ 

Decided: August 5, 2011 

_________________________ 

DONALD W. ZAPPLEY, SR., of Gladstone, Michigan, pro 

se. 

COURTNEY S. MCNAMARA, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for defendantappellee. With her on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, 

and FRANKLIN E. WHITE, JR., Assistant Director. 

__________________________ 
ZAPPLEY v. US 2

Before NEWMAN, PROST, O’MALLEY, Circuit Judges. 

PER CURIAM. 

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. 

BACKGROUND

On May 17, 2010, Zappley filed the complaint that 

gave rise to the present appeal in the CFC. The complaint raised several tort and criminal claims, a wrongful 

discharge claim, and disability 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 on 

August 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 Motion 

to 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 Western 
3 ZAPPLEY v. US

District of Michigan, dismissed 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, [the 

United States] shall file an interim status report regarding the remand proceedings. [The United States] shall 

also notify the court once the BCNR has resolved [Zappley’s] claims.” SA 1. 

On December 17, 2011, the BCNR issued its decision 

on 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. 

DISCUSSION

I. 

This court only has subject 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 order 

that “ ‘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 order 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, entered 

final 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 if 

it qualifies as a collateral order under the standard announced in Cohen v. Beneficial Industrial Loan Corp., 337 

U.S. 541, 545-47 (1949). An order is considered collateral 

if it: “[C]onclusively determine[d] the disputed question, 

resolve[d] an important issue 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 eventual final judgment. Once 
5 ZAPPLEY v. US

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 decision or order, and it is not a 

collateral order, we do not have subject matter jurisdiction to hear this appeal. Accordingly, this appeal is 

dismissed. 

DISMISSED