Cesar R. Vazquez Torres v. United States

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CESAR R. VAZQUEZ TORRES,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1165
______________________
Appeal from the United States Court of Federal Claims
in No. 1:23-cv-00085-SSS, Judge Stephen S. Schwartz.
______________________
Before M OORE, Chief Judge, T ARANTO and CHEN, Circuit
Judges.
P ER CURIAM .
O R D E R
In response to this court’s December 18, 2023 order to
show cause, the United States urges dismissal of this ap-
peal. Cesar R. Vazquez Torres opposes dismissal.
Mr. Vazquez Torres filed a complaint at the United
States Court of Federal Claims, challenging decisions of
the Army Board for Correction of Military Records and the
Army Discharge Review Board. On October 17, 2023, the
trial court affirmed the denial of disability retirement
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VAZQUEZ TORRES v. US 2
benefits but also ordered additional briefing on Mr.
Vazquez Torres’s requests for back pay and a promotion.
Mr. Vazquez Torres then filed a motion to “transfer” to this
court, which was construed as a motion for certification of
an interlocutory appeal and denied by the trial court on Oc-
tober 23, 2023. The next day, Mr. Vazquez Torres filed a
motion to “find the back pay and rank upgrade portion of
this case as moot,” for entry of final judgment, and to
“transfer” to this court. ECF No. 9 at 26–27. Before the
trial court could address Mr. Vazquez Torres’s motion, he
filed a notice of appeal from the October 17, 2023 order. In
light of the notice of appeal, the trial court stayed proceed-
ings.
This court’s jurisdiction over an appeal from the Court
of Federal Claims generally is limited to an appeal “from a
final decision.” 28 U.S.C. § 1295(a)(3). A “final” decision
“ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment.” Coopers & Lybrand
v. Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v.
United States, 324 U.S. 229, 233 (1945)). The October 17,
2023 order is not a final decision because it did not resolve
the issues of backpay and promotion. Nor do the general
exceptions to the final judgment rule apply here. In partic-
ular, the trial court did not certify the order for interlocu-
tory appeal under 28 U.S.C. § 1292(d)(2) or enter a Rule
54(b) certification, which permits the court to enter final
judgment as to fewer than all claims. RCFC 54(b).*
* To the extent Mr. Vazquez Torres’s pending motion
can be understood as a request to voluntarily dismiss his
requests for back pay and a promotion, that request has not
yet been approved by the trial court. Without such ap-
proval, there is no final appealable order in this case. See
United Access Techs., LLC v. AT&T Corp., Nos. 2021-2002,
2021-2007, 2022 WL 1124961, at *3 (Fed. Cir. Apr. 15,
2022) (citing Robinson-Reeder v. Am. Council on Educ., 571
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VAZQUEZ TORRES v. US 3
Accordingly,
I T I S O RDERED T HAT :
(1) The appeal is dismissed
(2) Each party shall bear their own costs.
February 28, 2024
Date
F OR THE COURT
F.3d 1333, 1339–40 (D.C. Cir. 2009)). We expect the trial
court will promptly act on Mr. Vazquez Torres’s pending
motion.
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