Southern Local School District Board of Education, Plaintiff-appellant, v. Jerry Aleshire, Jr., Jerry Aleshire, Sr, Donna Aleshire,defendant-appellees, 943 F.2d 52 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 943 F.2d 52 (6th Cir. 1991)

Sept. 11, 1991

Before RYAN and ALAN E. NORRIS, Circuit Judges, and DUGGAN, District Judge* .


The plaintiff school board appeals an order finding that it violated the Education for All Handicapped Children Act, 20 U.S.C. § 1401-1475. The district court's order further directs the clerk of the court to set a conference in which the parties will establish a schedule for the submission of evidence with respect to an appropriate remedy. On July 8, 1991, an order to show cause why this appeal should not be dismissed for lack of jurisdiction was entered. The plaintiff has not responded.

This court has jurisdiction in appeals from final orders of the district court. 28 U.S.C. § 1291. However, absent certification under 28 U.S.C. § 1292(b) or Fed. R. Civ. P. 54(b), an order disposing of fewer than all parties or claims in an action is nonappealable. William B. Tanner Co. v. United States, 575 F.2d 101, 102 (6th Cir. 1978) (per curiam). Likewise, a determination of liability without a determination of damages is not immediately appealable. Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 744 (1976). Here the district court has found a violation of the statute, but has not yet determined the remedy. The matter is still pending before the district court. Therefore this court lacks jurisdiction in the appeal.

It is ORDERED that the appeal is dismissed sua sponte for lack of jurisdiction without prejudice to the plaintiff's right to perfect a timely appeal upon entry of the final judgment.


The Honorable Patrick J. Duggan, U.S. District Judge for the Eastern District of Michigan, sitting by designation