Robert Fadem Mary O. Fadem v. United States of America, (Three Cases)

dissenting:

The majority holds that the absence of Rule 54(b) certification in consolidated cases can be cured by finalization of outstanding claims after the notice of appeal is filed, if there is no prejudice to the parties. I dissent because the majority’s broad rule, an uncodified extension of Federal Rule of Civil Procedure 54(b), threatens to swamp the narrowly crafted Federal Rule of Appellate Procedure 4(a)(2). The rule announced by the majority takes over the function of Rule 4(a)(2) and allows appeals in situations that Rule 4(a)(2) does not cover. Moreover, the new rule creates uncertainty over jurisdiction, resulting in the potential for unfairness to litigants and in needless expenditure of judicial resources. Accordingly, I would not allow subsequent finalization of remaining claims in a consolidated case to substitute for certification under Rule 54(b).

The majority’s holding has its roots in the principle announced in Anderson v. Allstate Ins. Co., 630 F.2d 677, 680-81 (9th Cir.1980), that “subsequent events can validate a prematurely filed appeal.” Id. The principle was based on two cases, Ruby v. Secretary of Navy, 365 F.2d 385, 389 (9th Cir.1966) (en banc),…

42 F.3d 533 30 Fed.R.Serv.3d 9 Robert FADEM; Mary O. Fadem, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. (Three Cases). Nos. 92-56400, 92-56404 and 92-56407. United States Court of Appeals, Ninth Circuit. Dec. 2, 1994. Robert S. Fadem and Mary O. Fadem, in Pro per. D. Michael Waltz, Asst. U.S. Atty., San Diego, CA, for defendant-appellee. Before: BRIGHT * , WIGGINS and T.G. NELSON, Circuit Judges. ORDER 1 The Order filed October 20, 1994, granting appellants' petition for rehearing is ordered to be published. ORDER 2 Circuit Judge BRIGHT and Circuit Judge T.G. NELSON have voted to grant Appellants' petition for rehearing. 3 Fadem I, Fadem III, Fadem IV and Fadem V are cases consolidated in the district court for all purposes. Appellants appealed the district court's dismissal of Fadem III, Fadem IV and Fadem V. However, at the time of the appeal, it appeared that the district court had not yet resolved Fadem I. Consequently, the panel dismissed the appeal in a memorandum disposition, relying on Huene v. United States, 743 F.2d 703 (9th Cir.1984). Huene held that an order disposing of less than all of the consolidated cases is not a final order and is not…

ORDER

The Order filed October 20,1994, granting appellants’ petition for rehearing is ordered to be published.

ORDER

Fadem I, Fadem III, Fadem TV and Fa-dem V are cases consolidated in the district eourt for all purposes. Appellants appealed the district court’s dismissal of Fadem III, Fadem IV and Fadem V. However, at the time of the appeal, it appeared that the district court had not yet resolved Fadem I. Consequently, the panel dismissed the appeal in a memorandum disposition, relying on Huene v. United States, 743 F.2d 703 (9th Cir.1984). Huene held that an order disposing of less than all of the consolidated cases is not a final order and is not appealable absent certification pursuant to Fed.R.Civ.P. 54(b). Id. at 705 .

Unknown to the panel at the time of its decision, Fadem I had actually been resolved by settlement. The chronology of relevant events is as follows: On September 11, 16 and 17, 1992, Appellants filed notices of appeal in Fadem III, Fadem IV and Fadem V On September 28, 1992, the district court entered an order of settlement in Fadem I, and on January 6, 1993, it entered an order dismissing Fadem I. On March 10, 1994, this appeal was submitted to the…