Opinion
No. 09-5079.
Filed On: May 28, 2009.
BEFORE: Sentelle, Chief Judge, and Garland and Griffith, Circuit Judges.
ORDER
Upon consideration of the order to show cause filed on March 18, 2009, and the response thereto, it is
ORDERED that the order to show cause be discharged. It is
FURTHER ORDERED that this appeal be dismissed for lack of a final order. See, e.g., 28 U.S.C. § 1291; Fed.R.Civ.P. 54(b). It is clear that the district court has not yet terminated appellant's action, as the district court recently directed appellant to file a response to a motion to dismiss, appellant has now done so, and the motion to dismiss remains pending. See Rosser v. Chrysler Corp., 864 F.2d 1299, 1306 (7th Cir. 1988) ("[W]ere we to find that the district judge failed to terminate this litigation in its entirety, no appellate jurisdiction could exist.");cf. Ciralsky v. CIA, 355 F.3d 661, 667-68 (D.C. Cir. 2004). Appellant's reliance on the 150-day separate judgment rule in Fed.R.Civ.P. 58(c)(2)(B) is misplaced, as that rule cannot create finality where claims are still pending. See Utah v. Norton, 396 F.3d 1281, 1287 (10th Cir. 2005) (noting the 150-day rule was not applicable where the absence of a separate judgment pursuant to Rule 58 was "not mere oversight" and the challenged order was not intended to be final).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.