Western Management, Inc. v. United States

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-5068
WESTERN MANAGEMENT, INC.,
Plaintiff,
and
YVONNE R. KOVACEVICH
Plaintiff-Appellant,
and
ROBERT E. KOVACEVICH,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in 08-CV-116,
Judge Nancy B. Firestone.
ON MOTION
Before MICHEL, Chief Judge LOURIE and BRYSON, Circuit Judges.
PER CURIAM.
ORDER
The United States moves to dismiss Yvonne R. Kovacevich and Robert E.
Kovacevich's appeal as premature. The appellants oppose.

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The appellants filed a complaint in the United States Court of Federal Claims
seeking a refund of federal income taxes paid. The United States counterclaimed for
outstanding tax liabilities. The appellants moved to strike the counterclaim for lack of
jurisdiction and the Court of Federal Claims denied the motion in part. The appellants
appealed that order.
The court's jurisdiction over appeals from decisions of the Court of Federal
Claims is governed by 28 U.S.C. § 1295(a)(3). Section 1295(a)(3) provides that the
court has jurisdiction over "an appeal from a final decision of the United States Court of
Federal Claims" (emphasis added). "A 'final decision' generally is one which ends the
litigation on the merits and leaves nothing for the court to do but execute the judgment."
Catlin v. United States, 324 U.S. 229, 233 (1945); see also Ultra-Precision Mfg Ltd. v.
Ford Motor Co., 338 F.3d 1353,1356-57 (Fed. Cir. 2003) (la] district court's judgment is
final where it 'ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment.'" (citation omitted)). Because the complaint and the United
States' counterclaim are pending in the Court of Federal Claims, there is no final
decision or judgment.
Accordingly,
IT IS ORDERED THAT:
(1) The United States' motion to dismiss is granted.
2009-5068 2

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(2) Each side shall bear its own costs.
FOR THE COURT
JUL 0 2 2009 /s/ Jan Horbalv
Date Jan Horbaly
Clerk
cc: Robert E. Kovacevich
Yvonne R. Kovacevich
Regina S. Moriarty, Esq.
s20
eaU.S. (tuff of AprEALR FOR
THE FEDERAL CIRCUIT
JUL 0 2 2009
JAN HORLsitLY
CLERK
JUL 0 2 2009ISSUED AS A MANDATE:
2009-5068 3

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