                         NOTE: This order is nonprecedential.

 United States Court of Appeals for the Federal Circuit




                                       2007-5076

                                CHARLES VAN CLEAVE,

                                                 Plaintiff-Appellee,

                                            v.

                                    UNITED STATES

                                                 Defendant-Appellant.

                                      ON MOTION

Before DYK, Circuit Judge.

                                        ORDER

       Charles Van Cleave moves to dismiss the United States’ appeal from the United

States Court of Federal Claims’ judgment in Van Cleaves v. US, 03-CV-1765, for lack of

jurisdiction. The United States opposes.

       On November 21, 2006, the Court of Federal Claims entered its Original

Judgment in favor of Van Cleave in the amount of $0.00. On December 4, 2006, the

United States moved without opposition for the Court of Federal Claims to correct its

Original Judgment in order to specify that (1) zero balance was due to Cleaves based

on offset of benefits, and (2) the Navy was directed to correct Cleaves’ records to reflect

a 30% disability-rating award, as previously decided on remand by the Navy.            On

December 14, 2006, the Court of Federal Claims issued an Amended Judgment
reflecting the above-mentioned corrections. On February 12, 2007, the United States

filed its appeal.

         Van Cleave contends that we lack jurisdiction to hear the United States’ appeal

because it was filed more than sixty days after the entry of the Original Judgment. The

United States responds that the motion to correct the Original Judgment was timely, and

therefore its December 4 motion tolled the United States’ time to file its appeal under

Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure (FRAP).

         Rule 4(a)(4)(A)(vi) of FRAP provides that the time to file an appeal is tolled when

a party files for relief under Rule 60 of the Federal Rules of Civil Procedure if such

motion is filed no later than 10 days after entry of judgment. However, FRAP 4(a)(4)(A)

does not refer specifically to Rule 60 of the Rules of the Court of Federal Claims. We

have nonetheless assumed that a motion under Rule 60 of the Court of Federal Claims

does toll the appeal period. Kraft, Inc. v. United States, 85 F.3d 602, 604-09 (Fed. Cir.

1996).

         Under the circumstances, we believe this issue is best addressed by the merits

panel.

         Accordingly,

         IT IS ORDERED THAT:

         (1)   Van Cleave’s motion to dismiss is denied without prejudice to the parties

 addressing the jurisdictional issue in the briefs.




2007-5076
                                            -2-
         (2)   The United States’ brief is due within 45 days of the date of filing of this

order.



         April 19, 2007                          /s/ Timothy B. Dyk
              Date                               Timothy B. Dyk
                                                 Circuit Judge

cc:      Charles Van Cleaves
         Domenique Kirchner, Esq.




2007-5076
                                           -3-
