Ward v. Widnall

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MICHAEL R. WARD,
Plaintiff-Appellant,
v.
No. 99-1250
SHEILA A. WIDNALL, Secretary,
United States Department of the
Air Force,
Defendant-Appellee.
MICHAEL R. WARD,
Plaintiff-Appellant,
v.
No. 99-1260
SHEILA A. WIDNALL, Secretary,
United States Department of the
Air Force,
Defendant-Appellee.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Charles B. Day, Magistrate Judge.
(CA-98-1273-DKC)
Submitted: April 6, 1999
Decided: October 22, 1999
Before MURNAGHAN and NIEMEYER, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
COUNSEL
Michael R. Ward, Appellant Pro Se. Lynne Ann Battaglia, United
States Attorney, Charles Joseph Peters, Sr., OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Michael Ward appeals the district court order entered January 15,
1999, awarding Sheila Widnall, Secretary of the Department of the
Air Force ("Defendant"), summary judgment on his claim that the
Department of the Air Force discriminated against him in violation of
the Rehabilitation Act of 1973, 29 U.S.C. § 701-797 (West 1985 &
Supp. 1998). He also seeks permission to appeal the district court
order entered February 10, 1999, denying his motion for summary
judgment on his claim that the Department of the Air Force discrimi-
nated against him in violation of the Age Discrimination in Employ-
ment Act ("ADEA"), 29 U.S.C.A. §§ 621-634 (West 1985 & Supp.
1998).
This court may exercise jurisdiction only over final orders, 28
U.S.C. § 1291 (1994), and certain interlocutory and collateral orders.
See 28 U.S.C. § 1292 (1994); Fed. R. Civ. P. 54(b); Cohen v. Benefi-
cial Indus. Loan Corp., 337 U.S. 541 (1949). Although the district
court's January 15th order awarded Defendant summary judgment on
Ward's Rehabilitation Act claim, his ADEA claim remains pending
in the district court. Because the district court did not certify its Janu-
ary 15th order as final under Fed. R. Civ. P. 54(b), and because the
order does not fall within the collateral order doctrine, this court pres-
ently lacks jurisdiction to consider Ward's appeal of that order. See
Baird v. Palmer, 114 F.3d 39, 43 (4th Cir. 1997).
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For this court to possess jurisdiction under 28 U.S.C. § 1292(b), the
district court must state in writing in the order to be appealed from
that the order involves a controlling question of law as to which there
is substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termina-
tion of the litigation. 28 U.S.C. § 1292(b). The district court's Febru-
ary 10th order contains no such statement. Therefore, that order is not
appealable under § 1292(b). See Fed. R. App. P. 5(a) (petition for per-
mission to appeal may be sought from interlocutory order containing
statement prescribed by 28 U.S.C. § 1292(b)).
Both the orders from which Ward appeals are non-appealable inter-
locutory orders. We therefore dismiss Ward's appeal from the district
court's January 15th order and grant Defendant's motion to dismiss
Ward's appeal from the district court's February 10th order. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
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