575 F2d 101 William Tanner Company Inc v. United States

575 F.2d 101

78-1 USTC P 9440

WILLIAM B. TANNER COMPANY, INC., Plaintiff-Appellant,
UNITED STATES of America, Defendant-Appellee.

No. 76-2367.

United States Court of Appeals,
Sixth Circuit.

Argued April 14, 1978.
Decided May 15, 1978.

Elijah Noel, Jr., Louis R. Lucas, Ratner, Sugarmon, Lucas & Salky, G. Philip Arnold, Memphis, Tenn., for plaintiff-appellant.

J. Michael Cody, U. S. Atty., Memphis, Tenn., Scott P. Crampton, Asst. Atty. Gen., Gilbert Andrews, Tax Div., U. S. Dept. of Justice, Washington, D. C., Myron C. Baum, Crombie J. D. Garrett, John G. Manning, Washington, D. C., for defendant-appellee.

Before EDWARDS and CELEBREZZE, Circuit Judges and CECIL, Senior Circuit Judge.



This is an appeal from an order of the district court granting summary judgment in favor of the United States but not adjudicating the liability of other defendants. Despite the clear language of Federal Rule of Civil Procedure 54(b) and several equally clear holdings of this Court, appellant neither sought nor received a Rule 54(b) certification that the order in question was a final judgment. Therefore, there was no final decision in terms of 28 U.S.C. § 1291 and this Court is without jurisdiction to consider the appeal. Balsbaugh v. City of Westland, 458 F.2d 1358 (6th Cir. 1972); Partin v. Hassan Motors, Inc., 363 F.2d 104 (6th Cir. 1966); Gabbard v. Rose, 330 F.2d 705 (6th Cir. 1964).


Since, however, a Rule 54(b) certification appears to be appropriate in this case, if appellant is able to obtain such from the district court within thirty days of the date of filing of this opinion, the appeal will be reinstated by the clerk, after appropriate notice of appeal and other jurisdictional prerequisites, for prompt disposition by this panel without additional briefing or oral argument.