Huene v. U.S., 83-2183
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Citation | 743 F.2d 703 |
| Docket Number | No. 83-2183,83-2183 |
| Parties | Donald R. HUENE and Annette S. Huene, Plaintiffs-Appellants, v. UNITED STATES of America and Internal Revenue Service, Defendants-Appellees. |
| Decision Date | 25 September 1984 |
Page 703
v.
UNITED STATES of America and Internal Revenue Service,
Defendants-Appellees.
Ninth Circuit.
Decided Sept. 25, 1984.
Donald R. Huene, Annette Huene, pro se.
Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Chief, Appellate Section, Richard W. Perkins, Murray Horwitz, Dept. of Justice, Washington, D.C., for defendants-appellees.
Appeal from the United States District Court For the Eastern District of California.
Before WRIGHT, HUG, and NELSON, Circuit Judges.
HUG, Circuit Judge:
Donald and Annette Huene appeal a summary judgment granted to the Internal Revenue Service on a claim brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552. Because the district court judgment disposes of only one of two consolidated cases, it is not appealable under 28 U.S.C. Sec. 1291 absent a Rule 54(b) certification.
On May 26, 1982, the Huenes filed an FOIA action against the IRS. They sought release of all information pertaining to them acquired by the IRS up to the date of their administrative request on April 16, 1982. While that action was pending before the district court, the Huenes filed a
Page 704
second FOIA action in which they sought release of information acquired by the IRS after April 16, 1982. The district court consolidated the two actions. It subsequently granted the IRS's motion for summary judgment in the first action. In the second action, each of the parties was granted a partial summary judgment. Issues not resolved by that partial judgment are still under consideration by the district court. No certification under Fed.R.Civ.P. 54(b) was obtained.This court has not determined whether an order that disposes of only one of two or more consolidated cases constitutes a final judgment for purposes of appellate jurisdiction under 28 U.S.C. Sec. 1291. Other circuits have developed two approaches to this question. The First Circuit considers each of the consolidated cases to be a separate action and thus a judgment disposing of all claims in one of the consolidated actions to be a final judgment, appealable without a Rule 54(b) certification. See In re Massachusetts Helicopter Airlines, Inc., 469 F.2d 439, 442 (1st Cir.1972). Accord Kraft, Inc. v. Local Union 327, Teamsters, 683 F.2d 131, 133 (6th Cir.1982).
The rationale of these cases is that the consolidated actions do not...
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