jaynell-begley-ruth-ellis-evelyn-gibson-daisy-laymance-eva-nuchols , 911 F.2d 731 ( 1990 )

911 F.2d 731

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Jaynell BEGLEY, Ruth Ellis, Evelyn Gibson, Daisy Laymance,
Eva Nuchols, Individually and on behalf of all
other similarly situated, Plaintiffs-Appellees,
v.
Louis W. SULLIVAN, Secretary of United States Department of
Health and Human Services, Defendant-Appellant.

No. 90-5833.

United States Court of Appeals, Sixth Circuit.

Aug. 20, 1990.

Before RYAN and ALAN E. NORRIS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

ORDER

1

This matter is before the court on the defendant's response to this court's order of July 24, 1990 directing the defendant to state why his appeal should not be dismissed for lack of jurisdiction. Defendant concedes his appeal may be premature but asserts he filed it out of an abundance of caution. Plaintiffs, who have not responded to the show cause order, have taken the position, in plaintiffs' reply in support of plaintiffs' motion to consolidate, that this court does have jurisdiction.

2

Plaintiffs have brought an action for declaratory judgment against defendant challenging the defendant's policy for determining disability in surviving spouses under Title II of the Social Security Act. The district court has held that defendant's policy is inconsistent with the statute. A Rule 52(b) motion for additional findings of fact and amended judgment has been filed with regard to the individual claim of plaintiff Jaynell Begley. A motion for further relief to plaintiff class has also been filed seeking injunctive relief from the district court. These motions remain pending in the district court.

3

Declaratory judgments are to be treated like other judgments for purpose of determining finality. Peterson v. Lindner, 765 F.2d 698 (7th Cir.1985). A judgment is final if it leaves nothing remaining for the district court to do except execute judgment. Catlin v. United States, 324 U.S. 229, 223 (1945). A declaratory judgment is not final when the issue of injunctive relief is left unresolved. Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 744 (1976). Furthermore, Rule 4(a)(4), Fed.R.App.P. provides that a timely motion under Rule 52(b), Fed.R.Civ.P. by any party will toll the time for appeal as to all parties. Marrical v. The Detroit News, 805 F.2d 169, 171 (6th Cir.1986) (per curium). A notice of appeal filed prior to the disposition of such a motion is of no effect. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). A new notice of appeal must be filed within the prescribed time for appeal following disposition of the motion. Upon review and consideration we conclude that the district court's order is not appealable, therefore,

4

It is ORDERED that the show cause order of July 24, 1990 is discharged and this appeal is dismissed sua sponte for lack of appellate jurisdiction and without prejudice to defendant's right to later perfect a timely appeal. Rule 9(b), Local Rules of the Sixth Circuit.