Dorothy L. Biery, Julia R. Chalfant Trust, K.a.k. Farms, Inc., American Packaging… v. United States

# NOTE: This order is nonprecedential.

## United States Court of Appeals for the Federal Circuit 2009-5134

DOROTHY L. BIERY, JULIA R. CHALFANT TRUST,
K.A.K. FARMS, INC., AMERICAN PACKAGING CORPORATION,
and COLLINS INDUSTRIES,

Plaintiffs-Appellants,
and
GORDON HOLLOWAY and STACY JUDY TRUST,
Plaintiffs,
and
JERRAMY PANKRATZ and ERIN PANKRATZ,
Plaintiffs,
V.

UNITED STATES,

Defendant-Appellee,

Appeal from the United States Court of Federal Claims in consolidated
case nos. 07-CV-693 and 07-CV-675, Judge Nancy B. Firestone.

ON MOTION

Before MICHEL, Chief Judge, LINN and PROST, Circuit Judges.
SCHALL, Circuit Judge.

ORDER

Appellants Dorothy L. Biery, et al. move to reactivate this appeal. The United
States opposes and moves to dismiss the appeal for lack of jurisdiction. The appellants
oppose. The United States replies.

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In cases that were later consolidated, the plaintiffs sued the United States
alleging that they were entitled to compensation for an unlawful taking. On motions for
summary judgment, the United States Court of Federal Claims dismissed one of Biery's
claims, dismissed the claims of the other appellants, and allowed the other plaintiffs'
claims to proceed. Biery appealed. On September 30, 2009, this court deactivated this
appeal pursuant to Fed. R. App. P. 4(a)(4), due to possible pending motions in the trial
court.

The United States contends that because there are pending claims before the
Court of Federal Claims, and because the Court of Federal Claims did not enter a Rule
54(b) judgment on the decided claims, the appeal is premature. We agree. Because
there are pending claims, there is no final judgment and this appeal is premature. See
Nystrom v. Trex Co., 339 F.3d 1347, 1350 (Fed. Cir. 2003) ("If a case is not fully
adjudicated as to all claims for all parties and there is no express determination that
there is no just reason for delay or express direction for entry of judgment as to fewer
than all of the parties or claims, there is no final decision . .. and therefore no
jurisdiction"). Any adversely affected party may, of course, file a notice of appeal after
the Court of Federal claims disposes of all claims and enters final judgment.

Accordingly,

IT IS ORDERED THAT:

(1)
The appellants' motion to reactivate this appeal is moot.

2\) The United States' motion to dismiss is granted.

(3)
Each side shall bear its own costs.

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FOR THE COURT

DEC 1 8 2009

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc:

Mark F. Hearne, II, Esq.

Ellen J. Durkee, Esq.

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

s20

DEC 1 8 2009

ISSUED AS A MANDATE:

DEC 1 8 2009

JAN HURBALY
CLERK

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