`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`CAROLYN JEWEL; ERIK KNUTZEN;
`JOICE WALTON, on behalf of
`themselves and all others similarly
`situated,
`
`Plaintiffs-Appellants,
`
`No. 15-16133
`
`D.C. No.
`4:08-cv-04373-
`JSW
`
`and
`
`TASH HEPTING; GREGORY HICKS,
`Plaintiffs,
`
`OPINION
`
`v.
`
`NATIONAL SECURITY AGENCY;
`KEITH B. ALEXANDER, Director, in
`his official and personal capacities;
`MICHAEL V. HAYDEN, in his
`personal Capacity; UNITED STATES
`OF AMERICA; GEORGE W. BUSH,
`President of the United States, in his
`official and personal capacities;
`RICHARD B. CHENEY, in his personal
`capacity; DAVID S. ADDINGTON, in
`his personal capacity; DEPARTMENT
`OF JUSTICE; ALBERTO R. GONZALES,
`in his personal capacity; JOHN D.
`ASHCROFT, in his personal capacity;
`JOHN M. MCCONNELL, Director of
`National Intelligence, in his official
`
`
`
`2
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`and personal capacities; JOHN D.
`NEGROPONTE, in his personal
`capacity; MICHAEL B. MUKASEY,
`Attorney General; BARACK OBAMA;
`ERIC H. HOLDER, JR., Attorney
`General; DENNIS C. BLAIR,
`Defendants-Appellees.
`
`Appeal from the United States District Court
`for the Northern District of California
`Jeffrey S. White, District Judge, Presiding
`
`Argued and Submitted
`October 28, 2015—Pasadena, California
`
`Filed December 18, 2015
`
`Before: Michael Daly Hawkins, Susan P. Graber, and
`M. Margaret McKeown, Circuit Judges.
`
`Opinion by Judge McKeown
`
`
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`3
`
`SUMMARY*
`
`Jurisdiction / Rule 54(b) Certification
`
`The panel dismissed the appeal for lack of jurisdiction
`because the appeal did not meet the requirements of Fed. R.
`Civ. P. 54(b) certification, and remanded to the district court
`for further proceedings.
`
`The panel concluded that Rule 54(b) certification was not
`warranted because the question of whether the copying and
`searching of plaintiff’s Internet communications violated the
`Fourth Amendment – which was the only issue that the
`district court certified as final under Rule 54(b) in a case
`involving statutory and constitutional challenges
`to
`government surveillance programs – was intertwined with
`several other issues that remained pending in district court
`and this interlocutory appeal would only prolong final
`resolution of the case.
`
`COUNSEL
`
`Richard R. Wiebe (argued), Law Office of Richard R. Wiebe,
`San Francisco, California; Cindy A. Cohn, Lee Tien, Kurt
`Opsahl, James S. Tyre, Mark Rumold, Andrew Crocker,
`Jamie L. Williams, and David Greene, Electronic Frontier
`Foundation, San Francisco, California; Rachael E. Meny,
`Michael S. Kwun, Audrey Walton-Hadlock, Benjamin W.
`Berkowitz, Justina K. Sessions, and Philip J. Tassin, Keker &
`
` * This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`an Nest, LLP, San Francisco, California; Thomas E. Moore
`III, Royse Law Firm, PC, Palo Alto, California; Aram
`Antaramian, Law Office of Aram Antaramian, Berkeley,
`California, for Plaintiffs-Appellants.
`
`4 V
`
`Henry C. Whitaker (argued), Douglas N. Letter, and H.
`Thomas Byron III, Appellate Staff, Civil Division, United
`States Department of Justice, Washington, D.C, for
`Defendants-Appellees.
`
`OPINION
`
`
`McKEOWN Circuit Judge:
`
`This appeal is the second trip to our court for a group of
`plaintiffs in their long-running statutory and constitutional
`challenges to government surveillance programs. In the last
`appeal, we reversed the district court’s dismissal of all claims
`on standing grounds and remanded for further proceedings,
`including determination of whether the “claims are foreclosed
`by the state secrets privilege.” Jewel v. Nat’l Sec. Agency,
`673 F.3d 902, 905 (9th Cir. 2011). Several years of further
`proceedings have yet to produce a final judgment. Most
`recently, the district court dismissed a Fourth Amendment
`claim—which was only one among several claims—
`regarding Internet surveillance, on the grounds that plaintiffs
`lacked standing and that their claim was barred by the state
`secrets privilege. Jewel v. Nat’l Sec. Agency, No. C08-
`04373, 2015 WL 545925, at *1 (N.D. Cal. Feb. 10, 2015).
`The court then certified that single issue as final under
`Federal Rule of Civil Procedure 54(b).
`
`
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`5
`
`The government filed a motion to dismiss the appeal for
`lack of jurisdiction, arguing that certification was improper
`under Rule 54(b). We agree. Our task is to address the
`juridical concerns surrounding the appeal of less than a
`complete judgment and to “scrutinize the district court’s
`evaluation of such factors as the interrelationship of the
`claims so as to prevent piecemeal appeals in cases which
`should be reviewed only as single units.” Curtiss-Wright
`Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980). Because the
`Fourth Amendment question is intertwined with several other
`issues that remain pending in district court and because this
`interlocutory appeal would only prolong final resolution of
`the case, we conclude that the Rule 54(b) certification was
`not warranted and dismiss the appeal for lack of jurisdiction.
`
`BACKGROUND
`
`This appeal arises out of ongoing litigation concerning
`Internet and cell phone surveillance programs the government
`began in the aftermath of the terrorist attacks on September
`11, 2001.1 In 2008, Carolyn Jewel, Tash Hepting, Gregory
`Hicks, Erik Knutzen, and Joice Walton filed a complaint on
`behalf of themselves and others similarly situated against the
`United States, the National Security Agency (“NSA”), and a
`number of high-level government officials in their personal
`and official capacities. The complaint included seventeen
`counts, raising both constitutional and statutory claims and
`seeking injunctive relief and monetary damages. In
`summary, the complaint alleges that government officials
`
` 1 The Jewel case is one of many similar cases, some of which have been
`consolidated under the Multidistrict Litigation provisions of 28 U.S.C.
`§ 1407. See Jewel, 673 F.3d at 906 nn.1 & 2; see also Jewel v. Nat’l Sec.
`Agency, No. C06-179, 2010 WL 235075, at *4 (N.D. Cal. Jan. 21, 2010).
`
`
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`6 e
`
`ngaged in continuing warrantless surveillance within the
`United States that had begun under a secret presidential order.
`The “terrorist surveillance program,” some aspects of which
`were publicly acknowledged by the government in 2005,
`involved collecting data on millions of Internet and cell
`phone users. According to plaintiffs, the telecommunications
`company AT&T collaborated with the NSA to divert Internet
`traffic into secure rooms at AT&T facilities in San Francisco
`and to provide customer records to the government. Through
`this collaboration, the government allegedly collected data on
`cellular telephone communications, text messages, email, and
`other forms of Internet communication without a warrant.
`Jewel, 673 F.3d at 906.
`
`In 2010, the district court dismissed the action with
`
`prejudice, holding that plaintiffs lacked a sufficiently
`particularized injury and therefore lacked standing on all
`claims. Jewel, 2010 WL 235075, at *1. On appeal, we
`reversed and held that “Jewel’s claims are not abstract,
`generalized grievances and instead meet the constitutional
`standing requirement of concrete injury. Nor do prudential
`considerations bar this action.” Jewel, 673 F.3d at 905. The
`case was remanded to the district court “with instructions to
`consider, among other claims and defenses, . . . the
`government’s assertion that the state secrets privilege bars
`this litigation.” Id. at 913–14.
`
`After remand, the district court addressed the interaction
`between the state secrets privilege and sovereign immunity as
`those issues pertain to the statutory claims under the Foreign
`Intelligence Surveillance Act (“FISA”), the Electronic
`Communications Privacy Act (“Stored Communications
`Act”), the Wiretap Act, and the Administrative Procedure
`
`
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`7
`
`Act. Jewel v. Nat’l Sec. Agency, 965 F. Supp. 2d 1090 (N.D.
`Cal. 2013). The district court determined:
`
`• The government’s state secrets privilege does not
`compel complete dismissal of the action because
`sufficient information regarding the surveillance
`program had been made public such that the subject
`matter of the suit itself is not a state secret. Id. at
`1102–03.
`
`• The “FISA procedural mechanism prescribed under
`50 U.S.C. § 1806(f) preempts application of the state
`secrets privilege.” Id. at 1103. Title 18 U.S.C.
`§ 2712 applies
`to claims under
`the Stored
`Communications Act and the Wiretap Act, thus
`preempting the state secrets doctrine for those claims.
`Id. at 1105, 1107–08.
`
`• The damages claims under FISA are barred by
`sovereign immunity, but damages are not barred
`under the Stored Communications Act or the Wiretap
`Act. Id. at 1108.
`
`•
`
`Plaintiffs cannot seek injunctive relief for their Stored
`Communications Act and Wiretap Act claims because
`Patriot Act § 223, amending 18 U.S.C. §§ 2520(a) and
`2707(a), impliedly limited authority to sue the United
`States for forms of relief other than damages. Id. at
`1109.
`
`The district court’s order disposed of eleven of the
`seventeen claims and explicitly declined to address any of
`the constitutional claims, which included First and Fourth
`Amendment challenges to Internet and phone surveillance
`
`
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`rograms and an alleged violation of the separation of powers
`principle. Id. at 1097, 1112. Nor did the court address the
`possible defenses, such as qualified immunity, that might be
`available to individual defendants. The district court
`requested further briefing on the scope of FISA preemption
`with regard to the constitutional claims, noting that plaintiffs
`had the burden to show standing to sue without risking
`impermissible damage to ongoing national security efforts.
`Id. at 1112. The court also requested briefing on the “recent
`disclosure of the government’s continuing surveillance
`activities and the statement by the Director of National
`Intelligence that certain information . . . should be
`declassified and immediately released to the public.” Id. at
`1113.
`
`8 p
`
`While the parties were in the process of briefing these
`questions, three of the five plaintiffs, Jewel, Knutzen, and
`Walton (collectively “Jewel” or the “Jewel plaintiffs”),
`moved for partial summary judgment on one aspect of their
`Fourth Amendment claim related specifically to Internet
`interception because they thought the public record supported
`their claim. Jewel specifically limited the scope of the
`motion to only one aspect of the Fourth Amendment claim
`“[a]t this time.”2 Jewel alleges that the government is
`engaging in a dragnet Internet interception program called
`
` 2 The motion narrowed the request for relief as follows: “At this time,
`plaintiffs do not seek a determination of the government defendants’
`liability for: a) past Fourth Amendment violations, including during
`periods that those activities were conducted solely under presidential
`authority without any Foreign Intelligence Surveillance Court order; b)
`past or present Fourth Amendment violations arising from government
`activities other than Internet communications, seizure or searching; or c)
`past or present violations of statutory and constitutional provisions other
`than the Fourth Amendment.”
`
`
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`9
`
`“Upstream” collection, and that this program is an element of
`the government’s collection of communications under FISA
`§ 702. Under this program, the NSA designates “non-U.S.
`persons located outside the United States who are reasonably
`believed to possess or receive, or are likely to communicate,
`foreign intelligence information.” Jewel, 2015 WL 545925,
`at *1. Once specific telephone numbers or email addresses
`associated with these individuals are identified, the NSA,
`assisted by the telecommunications providers, filters Internet
`communications “in an effort to remove all purely domestic
`communications”
`in order
`to capture designated
`communications. Id. at *2. The Jewel plaintiffs contend that
`this program constitutes surveillance of private
`communications without a warrant or
`individualized
`suspicion, in violation of the Fourth Amendment. Id. The
`government has “acknowledged the existence of the
`Upstream collection process . . . . [, h]owever, the technical
`details of the collections process remain classified.” Id.
`
`In an order denying Jewel’s motion for summary
`judgment and granting the government’s cross-motion, the
`district court held that plaintiffs failed to establish a sufficient
`factual basis for standing to challenge the ongoing Internet
`data collection program. Although the court agreed that
`Jewel could demonstrate concrete injury if the Internet
`interception program operated in the way proffered, “the
`evidence at summary judgment is insufficient to establish that
`the Upstream collection process operates in the manner in
`which Plaintiffs allege it does” and that, based on classified
`materials relating to Upstream collection, “the Plaintiffs’
`version of the significant operational details of the Upstream
`collection process is substantially inaccurate.” Id. at *4. The
`court further held that the Fourth Amendment claims “must
`be dismissed because even if Plaintiffs could establish
`
`
`
`10
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`. any possible defenses would require
`.
`.
`standing
`impermissible disclosure of state secret information.” Id. at
`*1.
`
`Granting Jewel’s motion under Rule 54(b), the district
`court certified that “adjudication of this claim is a final
`determination and that no just reason exists for delay in
`entering final judgment on this claim.” Other than a bare
`recitation of the rule, the court offered no explanation or
`analysis regarding the certification. After Jewel filed this
`appeal, the government responded with a motion to dismiss
`the appeal for lack of jurisdiction.
`
`ANALYSIS
`
` We begin with the foundational rule that generally we
`have jurisdiction to hear an appeal only if it arises from a
`final order, and “[a]n order granting partial summary
`judgment is usually not an appealable final order under
`28 U.S.C. § 1291 because it does not dispose of all of the
`claims.” Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881,
`884 (9th Cir. 2003) (citing 28 U.S.C. § 1291). An important
`exception is found in Rule 54(b), which provides in relevant
`part:
`
`When an action presents more than one claim
`for relief . . . or when multiple parties are
`involved, the court may direct entry of a final
`judgment as to one or more, but fewer than
`all, claims or parties only if the court
`expressly determines that there is no just
`reason for delay.
`
`
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`11
`
`The Rule was adopted “specifically to avoid the possible
`injustice of delay[ing] judgment o[n] a distinctly separate
`claim [pending] adjudication of the entire case. . . . The Rule
`thus aimed to augment, not diminish, appeal opportunity.”
`Gelboim v. Bank of Am. Corp., 135 S. Ct. 897, 902–03 (2015)
`(citations omitted). The Supreme Court has put some meat
`on this bare-bones rule. In highlighting the importance of
`juridical concerns with piecemeal appeals, the Court
`explained the role of a court of appeals in reviewing a Rule
`54(b) certification:
`
`The court of appeals must, of course,
`scrutinize the district court’s evaluation of
`such factors as the interrelationship of the
`claims so as to prevent piecemeal appeals in
`cases which should be reviewed only as single
`units. But once such juridical concerns have
`been met, the discretionary judgment of the
`district court should be given substantial
`deference, for that court is “the one most
`likely to be familiar with the case and with
`any justifiable reasons for delay.”
`
`Curtiss-Wright Corp., 446 U.S. at 10 (citations omitted).
`
`the “juridical concerns”
`review de novo
`We
`determination, first asking whether the certified order is
`sufficiently divisible from the other claims such that the “case
`would [not] inevitably come back to this court on the same
`set of facts.” Wood v. GCC Bend, LLC, 422 F.3d 873, 879
`(9th Cir. 2005). This inquiry does not require the issues
`raised on appeal to be completely distinct from the rest of the
`action, “so long as resolving the claims would ‘streamline the
`
`
`
`12
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`ensuing litigation.’” Noel v. Hall, 568 F.3d 743, 747 (9th Cir.
`2009) (citation omitted).
`
`The determination regarding Rule 54(b)’s equitable
`analysis ordinarily “is left to the sound judicial discretion of
`the district court to determine the ‘appropriate time’ when
`each final decision in a multiple claims action is ready for
`appeal.” Wood, 422 F.3d at 878 (quoting Curtiss-Wright
`Corp., 446 U.S. at 8). Although we encourage district courts
`to make factual findings and to explain their reasons for
`certifying under Rule 54(b) in order to facilitate appellate
`review, see Morrison-Knudsen Co. v. Archer, 655 F.2d 962,
`965 (9th Cir. 1981), we have held that the “lack of such
`findings is not a jurisdictional defect as long as we can
`independently determine the propriety of the order.” Noel,
`568 F.3d at 747 n.5. Thus, if a district court does not make
`any findings or give any explanation, we turn to the record to
`discern whether Rule 54(b) certification was warranted.
`Here, similar to Noel, the district court did not explain why it
`found that no just reason existed to delay entering judgment.
`Unlike Noel, however, based on the record before us we
`conclude that Rule 54(b) certification was not appropriate.
`
`As in Wood, “[w]e start (and mostly stop) with juridical
`concerns.” 422 F.3d at 879. We face the same hurdle
`encountered in Wood: “[w]e have no district court finding
`. . . about the interrelationship of the claims or issues, and the
`effect of the relationship on the likelihood of piecemeal
`appeals.” Id. at 880.
`
`The certification order carves out a single claim: “that the
`copying and searching of their Internet communications is
`conducted without a warrant or any individualized suspicion
`and, accordingly, violates the Fourth Amendment.” This
`
`
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`13
`
`claim is but one of seventeen asserted in the complaint. Even
`excluding the claims seeking damages under FISA and
`injunctive relief under other statutes, which were dismissed
`in 2013,3 still undecided are a number of constitutional and
`statutory claims relating to both Internet interception and cell
`phone surveillance. See Jewel, 965 F. Supp. 2d at 1112–13
`(listing the dismissed issues). In the absence of a roadmap in
`the certification order, we are left to unscramble how these
`complex claims (and the government’s defenses) intersect
`and overlap.
`
`that “Plaintiffs seek
`The district court observed
`adjudication as to their Fourth Amendment Claim with regard
`only to the NSA’s acknowledged Upstream collection of
`communications.” Jewel, 2015 WL 545925, at *2 (emphasis
`added). Jewel’s counsel characterized the claim on appeal as
`“the entirety of the Fourth Amendment Internet interception
`claim against the government.” This effort to carve out a
`specific, severable claim obscures the fact that the Internet
`interception theory is not the only Fourth Amendment
`argument, nor is the Fourth Amendment the only ground for
`relief alleged to arise from the Internet interception program,
`nor does the appeal encompass all plaintiffs or all defendants.
`It quickly becomes apparent that the Rule 54(b) order does
`not present final adjudication of a complete claim on the
`facts, the theories for relief, or the parties. See Houston
`Indus. Inc. v. United States, 78 F.3d 564, 567 (Fed. Cir. 1996)
`(“The resolution of individual issues within a claim does not
`satisfy the requirements of Rule 54(b).”).
`
` 3 Those dismissal orders were not certified under Rule 54(b) and are not
`part of this appeal.
`
`
`
`14
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`Jewel’s assertion that the Fourth Amendment Internet
`interception claim is factually distinct from the rest of the
`litigation is unconvincing. Jewel divides the claims into four
`categories, which they suggest are distinct: Internet content,
`Internet records (metadata), telephone content, and telephone
`records (metadata). All four categories rely on inter-
`connected
`factual allegations
`that
`the government
`collaborated with telecommunications providers to obtain
`information about domestic communications in a manner that
`is either unconstitutional or beyond the government’s
`statutory authority. Indeed, the complaint presents one
`section entitled “Factual Allegations Related to All Counts.”
`We conclude that “this case would inevitably come back to
`this court on the same set of facts.” See Wood, 422 F.3d at
`879.
`
`Apart from the common and intersecting facts, the nature
`of the claims makes piecemeal certification inappropriate.
`Jewel attempts to bifurcate the Fourth Amendment claims,
`focusing this appeal on Internet interception, while leaving
`the Fourth Amendment phone records claims in district court.
`Notably, however, all five plaintiffs have Fourth Amendment
`claims related to their phone records allegations. They also
`have damages claims against individual defendants for Fourth
`Amendment violations that have not yet been addressed by
`the district court.
`
`The carve-out approach suffers from another infirmity—
`not even all of the Internet interception claims are raised in
`this appeal. For example, the First Amendment claims
`remain unresolved in the district court, as do many of the
`statutory Internet interception claims. See Jewel, 965 F.
`Supp. 2d at 1112. Significantly, the Internet interception
`claims rely on overlapping elements of the same allegedly
`
`
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`15
`
`illegal government actions. Whether pleading constitutional
`or statutory violations, the “legal right to relief stems largely
`from the same set of facts and would give rise to successive
`appeals that would turn largely on identical, and interrelated,
`facts.” Wood, 422 F.3d at 880. The district court’s
`conclusion that the plaintiffs “failed to establish a sufficient
`factual basis to find they have standing to sue under the
`Fourth Amendment regarding the possible interception of
`their Internet communications” cannot be limited to the
`narrow Fourth Amendment claim. Jewel, 2015 WL 545925,
`at *1. The court rejected Jewel’s standing argument because
`plaintiffs failed to describe the Internet interception program
`accurately. Id. at *4. It is only logical that this reasoning
`raised a potential standing bar for all claims related to the
`same government program. The district court further held
`that, even if plaintiffs could establish standing to challenge
`the Internet interception program, “any possible defenses
`would require impermissible disclosure of state secret
`information.” Id. at *1 (emphasis added).4 The alternative
`state secrets holding presents the same conundrum as the
`court’s standing ruling: it is not practical to cabin the ruling
`to the Fourth Amendment claim, thus presenting a realistic
`risk of duplicative litigation on remaining claims.
`
`A final complication is that not all of the parties are
`included in this appeal, nor does this appeal resolve all of the
`Jewel plaintiffs’ claims. See Spiegel v. Trustees of Tufts
`Coll., 843 F.2d 38, 44 (1st Cir. 1988) (“It will be a rare case
`where Rule 54(b) can appropriately be applied when the
`
` 4 The district court did not address the relationship between this holding
`and its previous determination that FISA § 1806(f) preempts the state
`secrets doctrine for Stored Communications Act and Wiretap Act claims.
`See Jewel, 965 F. Supp. 2d. at 1108.
`
`
`
`16
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`contestants on appeal remain, simultaneously, contestants
`below.”). Only three of the five plaintiffs pursued the Fourth
`Amendment motion for summary judgment. Jewel explains
`that this is because two of the plaintiffs were not AT&T
`Internet customers and, therefore, did not claim that the
`government had collected information regarding their Internet
`use. Nevertheless, this circumstance fractures the appeal
`even further, especially because the facts and legal theories
`relied upon by the Jewel plaintiffs to show standing for the
`Fourth Amendment argument are not substantially different
`from some of the other constitutional and statutory claims,
`which apply to all plaintiffs.
`
`In sum, the “practical effect of certifying the [Fourth
`Amendment] issue[] in this case is to deconstruct [the] action
`so as to allow piecemeal appeals with respect to the same set
`of facts.” Wood, 422 F.3d at 880.
`
`Apart from juridical concerns, which counsel against
`certification, we are not convinced that this appeal meets the
`“no just reason for delay” prong of Rule 54(b). Our
`consideration of the single issue served up for interlocutory
`review is more likely to cause additional delay than it is to
`ameliorate delay problems. See Sussex Drug Prods. v.
`Kanasco, Ltd., 920 F.2d 1150, 1156 (3d Cir. 1990) (“The
`interlocking factual relationship of the various counts leading
`to the likelihood that a subsequent appeal would again seek
`review of the issues presented here also suggests that it was
`not in the interests of sound judicial administration for the
`district court to certify this judgment as final.”).
`
`We are sympathetic to the Jewel plaintiffs’ desire to bring
`at least part of this case to a close. But awaiting a decision on
`a single claim, which is not a linchpin claim either factually
`
`
`
`JEWEL V. NATIONAL SECURITY AGENCY
`
`17
`
`or legally, does not advance this result. In fact, the result of
`this appeal has been to bring the district court proceedings to
`a halt. Both sides point fingers as to why no final decision
`has been reached. We do not take sides in that debate, except
`to say that the parties’ and judicial resources would be better
`spent obtaining a final judgment on all of the claims, instead
`of detouring to the court of appeals for a piecemeal resolution
`of but one sliver of the case.
`
`CONCLUSION
`
`Because the appeal does not meet the requirements of
`Rule 54(b), we lack jurisdiction over the appeal. The
`government’s motion to dismiss is granted, and the case is
`remanded to the district court for further proceedings.
`
`CERTIFICATION REVERSED; APPEAL DISMISSED; CASE
`REMANDED.
`
`Each party shall bear its own costs on appeal.