Unpublished Disposition, 911 F.2d 738 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 911 F.2d 738 (9th Cir. 1989)

Margaret GREENE, in her capacity as Chairman of the SamishIndian Tribe of Washington, Samish Indian Tribe,of Washington, Plaintiffs-Appellees,v.Manuel LUJAN, Jr., in his capacity as Secretary of theInterior, et al., Defendants,andTulalip Tribes of Washington, Intervenor-Appellant.

No. 90-35104.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 9, 1990.* Decided Aug. 14, 1990.

Before EUGENE A. WRIGHT, BEEZER and TROTT, Circuit Judges.


We have "jurisdiction of appeals from all final decisions of the district courts of the United States." 28 U.S.C. § 1291. A final order is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." In re Benny, 791 F.2d 712, 718 (9th Cir. 1986) (citing Catlin v. United States, 324 U.S. 229, 233 (1945)).

Although Judge Zilly referred to his order as a denial of the right to intervene under Fed. R. Civ. P. 24(a) (2), the hearing transcript shows that he merely delayed consideration of the Tulalips' motion to intervene and that he will do so after he decides the collateral estoppel and res judicata issues. October 16, 1989 Transcript of Hearing at 52-53.

The decision is not final. See C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction Sec. 3907 at 430 (ed. 1976) ("At a minimum, appellate review should not ordinarily occur before it is clear that the judge has no intention of further reconsidering the challenged ruling."); National Treasury Employees Union v. Federal Labor Relations Authority, 712 F.2d 669, 670 (D.C. Cir. 1983) (" [T]he finality requirement is met when the initial decision-maker's action becomes firm and stable, the definitive 'last word.' "); Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 70 (2d Cir. 1973) ("The final judgment rule is designed ... to prevent an appeal on an issue concerning which the trial court has not yet made up its mind beyond possibility of change.").

DISMISSED for lack of jurisdiction.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4