554 F2d 664 Silver v. Secretary Army Department Army United States

554 F.2d 664

Harold SILVER, Plaintiff-Appellant,
The SECRETARY of the ARMY, of the DEPARTMENT of the ARMY of
the UNITED STATES of America, Defendant-Appellee.

No. 76-1186

Summary Calendar.*
United States Court of Appeals,
Fifth Circuit.

June 22, 1977.

David LaCroix, Gainesville, Fla., for Harold Silver.

Clinton Ashmore, U. S. Atty., Tallahassee, Fla., Nicholas P. Geeker, Asst. U. S. Atty., Pensacola, Fla., William A. McNutt, Capt., Litigation Div., OTJAG DA, Washington, D. C., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before THORNBERRY, RONEY and HILL, Circuit Judges.


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Appellant is attempting to appeal an order of the district court which remanded his suit to expunge two unfavorable fitness reports from his service record back to the Army Board for Correction of Military Records. The district court has retained jurisdiction of the suit.


However, this Court has no jurisdiction to entertain this appeal and we must dismiss. The district court's order of October 8, 1975, remanding this case to the Board is not dispositive of this litigation, and is not a final order as required by 28 U.S.C. § 1291. Nor may the district court's order be considered an interlocutory decision under either paragraphs (a) or (b) in 28 U.S.C. § 1292. The order does not grant, continue, modify, refuse, or dissolve an injunction, and the district court has not certified the order to us as involving a controlling question of law about which there is difference of opinion. See Pauls v. Secretary of Air Force, 1 Cir. 1972, 457 F.2d 294, 297-298.




Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I