NASSIF J. CANNON and GAIL F. BARBER v. United States

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-5153
NASSIF J. CANNON and GAIL F. BARBER,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims
in 02-CV-61, Judge Lawrence J. Block.
ON MOTION
Before NEWMAN, RADER, and SCHALL, Circuit Judges.
NEWMAN, Circuit Judge.
ORDER
The United States moves to dismiss Nassif J. Cannon's and Gail F. Barber's
appeal for lack of jurisdiction. The appellants do not oppose.
The appellants filed a complaint in the United States Court of Federal Claims
seeking a refund of federal income taxes paid in connection with investments in a group
of tax-shelter partnerships. This complaint was one of several related complaints filed
in the Court of Federal Claims seeking the same relief. The trial court stayed this case
pending its decision in Prati v. United States, 81 Fed. Cl. 422 (2008), believing that the
decision in Prati would control the outcome of the other cases. In Prati, the Court of
Federal Claims dismissed the case, determining that it lacked jurisdiction over the
alleged claims. Accordingly, the Court of Federal Claims also dismissed the other
pending cases. On reconsideration, the Court of Federal Claims vacated its judgment

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in the present case, finding case-specific claims that were not resolved by Prati. The
appellants appealed to this court.
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) C[a] 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 Court of Federal Claims
vacated its judgment and has not concluded its proceedings, there is no final judgment.
The appellants may, of course, file a notice of appeal after the trial court concludes its
proceedings and enters final judgment, if appropriate.
Accordingly,
IT IS ORDERED THAT:
The United States' motion to dismiss is granted.
Each side shall bear its own costs.
FOR THE COURT
JUN -3 2009 /s/ Jan Horbalv
Jan Horbaly
Clerk
JUn 3 tile,
JAN itRIMIA
CLERK
Date
2008-5153 2

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cc: Sally W. Gladney, Esq.
Deborah K. Snyder, Esq.
s20
ISSUED AS A MANDATE: JUN -3 2009
2008-5153 3

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