                                No. 19-255C
                           (Filed: June 9, 2020)
                         (Re-filed: June 17, 2020) 1
                         NOT FOR PUBLICATION

**************************

DOE NO. 1, et al.,
                                                       29 U.S.C. § 216(b) (2018);
                             Plaintiffs,               motion for attorney’s fee and
                                                       costs; reasonable hours;
v.                                                     contingency fee.

THE UNITED STATES,

                             Defendant.

**************************

       Linda Lipsett, Washington, DC, for plaintiffs. Daniel M. Rosenthal,
Alice C. Hwang, and Michael P. Ellement, of counsel.

      Ashley Akers, United States Department of Justice, Civil Division,
Commercial Litigation Branch, Washington, DC, with whom were Joseph
H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, and
Tara K. Hogan, Assistant Director, for defendant.

     ORDER ON MOTION FOR ATTORNEY’S FEES AND COSTS

       Plaintiffs, ten Bureau of Alcohol, Tobacco, Firearms and Explosives
Firearms Enforcement Officers, filed a complaint alleging violation of the
Fair Labor Standards Act (“FLSA”) on February 14, 2019. 2 Following initial
discovery and negotiations, plaintiffs accepted an offer of judgment from

1
  Due to the protective order in this matter, this order was filed under seal to
afford the parties an opportunity to propose redactions. The parties filed a
notice on June 11, 2020, stating that they propose no redactions. This order
is therefore re-filed without redactions.
2
  Plaintiffs amended the complaint four times, adding more plaintiffs each
time for a total of ten officers.
defendant on January 10, 2020, and the Clerk entered judgment in the amount
of $147,575.92 on January 28, 2020. Pending is plaintiffs’ motion for
attorney’s fees and its bill of costs totaling $41,956.77 through February 25,
2020, under Rule 54(d) of the Rules of the United States Court of Federal
Claims (“RCFC”). 3

        Defendant argues that plaintiffs seek compensation for an
unreasonable number of hours and costs that will create a windfall to
plaintiffs’ counsel if awarded. Defendant asks that plaintiffs receive, at most,
$18,000 in attorney’s fees and approximately $450 in costs. In their reply in
support of their fee petition, plaintiffs reduced their motion for attorney’s
fees and costs from $48,079.72 to $41,956.77.

       The FLSA mandates that a court “shall, in addition to any judgment
awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be
paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b) (2018).
Such an attorney’s fee and costs are mandatory when plaintiffs prevail in a
FLSA case. Slugocki v. United States, 816 F.2d 1572, 1579 (Fed. Cir. 1987).
Plaintiffs accepted an offer of judgment in the amount of $147,575.92, and
defendant does not dispute that plaintiffs are prevailing party.

       To determine the award of attorney’s fees, we calculate “the number
of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). To determine
a reasonable hourly rate, the court looks to “market rates for the services
rendered” in the jurisdiction where the case was litigated. Missouri v.
Jenkins, 491 U.S. 274, 283 (1989). A reasonable rate is “in line with those
prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886,
895 n.11 (1984). Plaintiffs’ counsel, who are practitioners in the District of
Columbia, submit that the USAO-Laffey Matrix, which is published by the
United States Attorney’s Office for the District of Columbia and sets forth
market rates for attorneys based on experience, sets the rates for attorneys in
their community. Defendant does not contest the use of the USAO-Laffey
Matrix to set the hourly rate.

3
 Plaintiffs filed a bill of costs separately but also attached the bill of costs
and supporting documentation to their motion for attorney’s fees, requesting
that the court enter judgment for the bill of costs amount to the extent that
the Clerk does not act. We grant both the motion for attorney’s fees and bill
of costs, as discussed in this order.
                                       2
amount of time on briefing a motion for an extension of time; unreasonably
billed ministerial activities like email review in quarter-hour increments; and
unreasonably allowed partner-level attorneys to bill too many hours.
Defendant also points out that plaintiffs’ “[c]ounsel bills 32.50 hours or
$12,886 for preparing a motion for fees in a case involving less than 100
hours spent on litigation.” Def.’s Resp. 7. Finally, despite acknowledging
that plaintiffs are entitled to statutory fees and that this court does not review
FLSA settlements between plaintiffs and the United States, defendant argues
that plaintiffs’ counsel should not receive statutory fees because plaintiffs
agreed to pay a contingency fee. Regarding costs, defendant argues that costs
for a transcript, docket entries, and certain commercial research were
unreasonable.

        In their reply brief, plaintiffs reduced their request by approximately
20 hours ($5,976.25 in fees). That reduction decreased the fees sought from
$47,381 to $41,404.75 through February 25, 2020. Plaintiffs removed fees
for hours spent after accepting the government’s offer of judgment that were
unrelated to their fee petition; hours dedicated to filing a motion for
clarification; hours spent on filing a motion for leave to file supplemental
evidence; and hours billed for opposing defendant’s motion for enlargement
of time. Plaintiffs also decreased the hours claimed for time spent on its fees
petition from 32.5 hours to 31 hours.

        Beyond the deduction in hours, plaintiffs do not seek fees for the time
spent on their reply brief with respect to fees, concluding their fee petition at
February 25, 2020. Additionally, from their $698.72 costs request, plaintiffs
eliminated the $146.70 transcript cost. Regarding the rest of the hours billed
and costs claimed, plaintiffs maintain that their counsel used appropriate
billing judgment and standard billing practices.

        When reviewing plaintiffs’ billing records and associated briefing, the
court is guided by the principle that legal counsel must use billing judgment
and properly document the hours spent, by whom, and on what tasks.
Hensley, 461 U.S. at 433-34; see also Jenkins, 491 U.S. at 288. We find that
plaintiffs’ counsel expended a reasonable number of hours and reasonably
assigned attorneys at varying experience levels to this case.

      This case was resolved after negotiations and an offer of judgment,
without dispositive motion practice, but there were three disputed procedural
motions and protracted settlement discussions. Plaintiffs also point out that
counsel completed limited discovery prior to settlement. Through this
process, plaintiffs’ counsel secured a $147,575.92 recovery for their clients.
                                        4
Also, the parties engaged in substantive briefing on the fee request.
Ultimately, plaintiffs’ petition for attorney’s fees and costs represents less
than a third of the total recovery.

        With this context in mind, we conclude that plaintiffs’ counsels’ hours
and staffing were reasonable. First, plaintiffs included approximately six
hours billed in quarter-hour increments for tasks such as reviewing
documents, sending emails between counsel, and phone conversations
between counsel. There is nothing inherently unreasonable about using a
quarter-hour increment for a small set of hours spent on basic tasks, and in
this case plaintiffs’ counsel did not egregiously accumulate quarter-hour
entries. Furthermore, in a case spanning approximately a year and including
lawyers and support staff coordinating in two firms, we find it reasonable
that plaintiffs’ counsel spent 31 hours preparing the fee petition.

        Additionally, we discount the government’s questioning of plaintiffs’
lead counsel bringing in attorneys from another law firm for a total of four
attorneys and two paralegals. We understand that Ms. Lipsett is essentially a
solo practitioner. Given that we are not concerned about the reasonableness
of the hours claimed, the number of law firms that accumulated those hours
is immaterial. Plaintiffs are entitled to engage the number of attorneys needed
to resolve their suit. Relatedly, defendant quibbles with which lawyer, at
varying experience levels, was assigned to various tasks but does not
question the accuracy of the billing records supporting those hours. The court
finds that plaintiffs’ counsel reasonably divided tasks without expending an
unreasonable amount of time. The court will not second guess the hours
beyond that inquiry, because, as defendant concedes, the court does not play
a role in approving the FLSA settlement between plaintiffs and the
government nor does it have a role in reviewing the agreement between
plaintiffs and their counsel. Plaintiffs have appropriately reduced their costs
request and the amounts charged for filing, copying, and research are
reasonable.

       For the foregoing reasons, the court grants plaintiffs’ motion for
attorney’s fees and its bill of costs in the amount of $41,404.75 in attorney’s
fees and $552.02 in costs, totaling $41,956.77. The Clerk is directed to enter
judgment accordingly.

                                           s/Eric G. Bruggink
                                           ERIC G. BRUGGINK
                                           Senior Judge
                                      5


People v Flores (2015 NY Slip Op 00634)

People v Flores

2015 NY Slip Op 00634

Decided on January 26, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 26, 2015

Tom, J.P., Acosta, Saxe, Moskowitz, Feinman, JJ.

14043 1411/99

[*1] The People of the State of New York, Respondent,
vNelson Flores, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Eve Kessler of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (William Terrell, III of counsel), for respondent.

Order, Supreme Court, Bronx County (Barbara F. Newman, J.), entered on or about April 5, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.
The court properly exercised its discretion in determining that substantial justice dictated the denial of resentencing (see e.g. People v Rodriguez, 116 AD3d 639 [1st Dept 2014], lv denied 23 NY3d 1042 [2014]). Among other things, defendant absconded and remained a fugitive for many years, during which time he trafficked in drugs in various states, and engaged in such activity even while he was in federal custody. Contrary to defendant's assertion, the court expressly considered evidence of defendant's rehabilitation during his most recent period of
incarceration, and concluded that it was outweighed by the factors militating against resentencing (see People v Marte, 44 AD3d 442 [1st Dept 2007], appeal dismissed 9 NY3d 991 [2007]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 26, 2015
CLERK


541 U.S. 942
AYERv.NEW HAMPSHIRE.
No. 03-8317.
Supreme Court of United States.
March 22, 2004.

1
Sup. Ct. N. H. Certiorari denied. Reported below: 150 N. H. 14, 834 A. 2d 277.


661 F.2d 925
Perkinsv.Loving
80-6725
UNITED STATES COURT OF APPEALS Fourth Circuit
5/8/81

1
E.D.Va.

REMANDED


                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                              No. 09-1307

RICKY LEE HANKINS,

                  Plaintiff – Appellant,

             v.

JIMMY AYERS,

                  Defendant - Appellee.

Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.  Norman K. Moon, District
Judge. (6:09-cv-00014-nkm)

Submitted:    June 3, 2009                       Decided:   June 10, 2009

Before MOTZ and      KING,   Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Ricky Lee Hankins, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Ricky Lee Hankins seeks to appeal the district court’s

order dismissing without prejudice his 42 U.S.C. § 1983 (2006)

complaint for failure to state a claim upon which relief may be

granted under 28 U.S.C. § 1915(e)(2)(B) (2006).                            This court may

exercise jurisdiction only over final orders, 28 U.S.C. § 1291

(2006),       and    certain    interlocutory          and    collateral         orders,   28

U.S.C. § 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 545-46 (1949).                                  Because the

deficiency identified by the district court – that the complaint

did     not    assert    sufficient        facts       in     support      of     its   legal

conclusions – may be remedied by the filing of a complaint that

articulates adequate facts, we conclude that the order Hankins

seeks    to    appeal    is     neither    a       final    order    nor    an    appealable

interlocutory or collateral order.                         See Domino Sugar Corp. v.

Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir.

1993)     (a        dismissal      without         prejudice        is     not     generally

appealable).

               Accordingly,        we    dismiss       the     appeal       for     lack   of

jurisdiction.           We     deny     Hankins’      motion        for    appointment     of

counsel.       We dispense with oral argument because the facts and

legal    contentions         are   adequately         presented       in    the    materials

                                               2
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   DISMISSED

                                    3


362 F.2d 379
Ben Edward ALEXANDER, Appellant,v.UNITED STATES of America, Appellee.
No. 20394.
United States Court of Appeals Ninth Circuit.
June 7, 1966.
Rehearing Denied July 19, 1966.

1
Lawrence Ollason, Tucson, Ariz., for appellant.

2
Wm. P. Copple, U. S. Atty., Jo Ann D. Diamos, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

3
Before HAMLEY and DUNIWAY, Circuit Judges, and MATHES, Senior District Judge.

4
MATHES, Senior District Judge.

5
This appeal is from a judgment and sentence following a jury's verdict of guilty of an indictment charging the receipt and concealment, and facilitation of the transportation and concealment, in the District of Arizona, of a quantity of heroin, in violation of 21 U.S.C. § 174.

6
The evidence adduced at the trial disclosed that about 8:00 P.M., on August 24, 1964, a Customs Agent stationed at the Mexican border in Nogales, Arizona, observed appellant's accomplice, one Arnold, cross the border into the United States driving a 1961 blue Buick automobile bearing license number FCT-794. Arnold was alone at the time. Acting upon a "tip" from an informer, the Arnold vehicle was followed by Customs officers and, except for a few minutes when the car was temporarily lost from sight, this surveillance continued until Arnold parked on Morley Avenue in Nogales, Arizona. There Arnold left the car, walked across the street, and sat down in a nearby park.

7
About 8:30 P.M. that evening, appellant was observed crossing the Mexican border and entering the United States on foot. Appellant registered as a narcotic violator pursuant to 18 U.S.C. § 1407, as he had done upon entering Mexico earlier that day. He was followed by Customs officials from the border to a nearby bus station, and from there to Morley Avenue, where appellant crossed to the east side of the street and walked north. Arnold returned to his car and drove north, passed appellant, made a U-turn, passed appellant a second time, made another U-turn, and then stopped abreast of the appellant. Meanwhile, appellant had crossed back over to the west side of Morley Avenue, and now crossed once more and entered the right front seat of the vehicle.

8
Thereupon the car turned west on Highway 89, and was followed a short distance and then stopped and searched by Customs officials. Inside a toolbox in the locked trunk of the car, the officers found the heroin in question wrapped in lined tablet paper. Accomplice Arnold pleaded guilty. Appellant pleaded not guilty, and retained counsel who represented him at the trial.

9
Arnold testified as a witness for the prosecution at appellant's trial, and swore that he and appellant had jointly acquired the heroin in Mexico, where they had gone separately for that purpose; and that they then agreed for Arnold to transport the narcotics across the border in his automobile, and await appellant's arrival at a prearranged place in downtown Nogales, Arizona.

10
Appellant testified fully in his own defense, swearing in substance that he had no knowledge or possession or control of the heroin, or any interest whatever therein; that he did not know what Arnold had in the car. The jury obviously did not credit the direct evidence of appellant over that of Arnold plus the circumstantial evidence.

11
Upon this appeal appellant is represented by appointed counsel, who first urges as ground for reversal that there was an unreasonable search of the automobile and seizure of the heroin, since the Customs officers lacked a warrant of arrest, as well as probable cause to believe that the vehicle contained unlawfully imported merchandise, or that appellant or Arnold were committing or had committed a felony. It is argued that there was no evidence upon which to predicate probable cause other than the "tip" given to a Customs Agent by an informant, and that the District Court's failure to require the prosecution to identify or produce the informer at the trial made any statements by the informant unavailable as evidence of probable cause.

12
But this contention misses the mark. The informer's "tip" was only as to the identity of the automobile said to be carrying narcotics. There was no information as to the identity of the occupants of the car, other than that they were "two negro males". Moreover, the informant gave his information from the Mexican side of the border and at a time before the offense with which appellant was charged could have been committed in the District of Arizona.

13
Appellant's argument treats this case as the conventional one where probable cause is relied upon to make lawful an arrest without a warrant, and the search and seizure are urged to be "reasonable", within the meaning of the Fourth Amendment, as an incident to the prior lawful arrest. [See: Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed. 2d 142 (1964); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Draper v. United States, 358 U. S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).] However, the question presented in the case at bar is the converse of the conventional. Here the arrest without a warrant is asserted to be law-law as an incident to a prior lawful search and seizure; the alleged lawful search and seizure, coupled with other antecedent and surrounding circumstances, are said to provide the probable cause which makes lawful appellant's subsequent arrest without a warrant.

14
Customs officers have long been given express authority to "stop, search, and examine, as well without as within their respective districts, any vehicle * * * or person, on which he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law." [19 U.S.C. § 482; see: Act of March 3, 1815, 3 Stat, 231, 232; Act of July 18, 1866, 14 Stat. 178.] Indeed, Customs officers are authorized "at any time to go on board * * * any * * * vehicle at any place in the United States * * * and search * * * the vehicle and every part thereof * * and to this end may hail and stop such vehicle, and use all necessary force to compel compliance." [19 U.S.C. § 1581 (a); see Act of July 31, 1789, 1 Stat. 29, 43.]

15
Furthermore: "If upon the examination of any * * * vehicle it shall appear that a breach of the laws of the United States is being or has been committed so as to render such * * * vehicle, or the merchandise, or any part thereof, on board of, or brought into the United States by, such * * * vehicle, liable to forfeiture or to secure any fine or penalty, the same shall be seized and any person who has engaged in such breach shall be arrested." [19 U.S.C. § 1581(e).]

16
In conferring upon Customs officers such broad authority, circumscribed only by Constitutional limitations of the Fourth Amendment, the Congress has in effect declared that a search which would be "unreasonable" within the meaning of the Fourth Amendment, if conducted by police officers in the ordinary case, would be a reasonable search if conducted by Customs officials in lawful pursuit of unlawful imports. Judicial recognition of this distinction has given rise to the term "border search", in order to distinguish official searches which are reasonable because made solely in the enforcement of Customs laws from other official searches made in connection with general law enforcement.

17
Validity for this distinction is found in the fact that the primordial purpose of a search by Customs officers is not to apprehend persons, but to seize contraband property unlawfully imported or brought into the United States. [See The Atlantic, 68 F.2d 8 (2d Cir. 1933).] Accordingly, it is well settled that a search by Customs officials of a vehicle, at the time and place of entering the jurisdiction of the United States, need not be based on probable cause; that "unsupported" or "mere" suspicion alone is sufficient to justify such a search for purposes of Customs law enforcement. [Cervantes v. United States, 263 F.2d 800, 803, n. 5 (9th Cir. 1959); see: Carroll v. United States, 267 U.S. 132, 154, 45 S. Ct. 280, 69 L.Ed. 543 (1925); Boyd v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Hammond v. United States, 356 F.2d 931 (9th Cir. 1966); King v. United States, 348 F.2d 814, 817 (9th Cir. 1965); Jones v. United States, 326 F.2d 124, 130 (9th Cir. 1964, concurring opinion of Judge Duniway); Denton v. United States, 310 F.2d 129 (9th Cir. 1962); Mansfield v. United States, 308 F.2d 221 (5th Cir. 1962); Plazola v. United States, 291 F.2d 56 (9th Cir. 1961); Witt v. United States, 287 F.2d 389 (9th Cir. 1961); Murgia v. United States, 285 F.2d 14 (9th Cir. 1960); Landau v. United States Attorney, 82 F.2d 285 (2nd Cir. 1936); United States v. Wischerth, 68 F.2d 161 (2nd Cir. 1933); United States v. Yee Ngee How, 105 F.Supp. 517 (N.D.Calif.1952).]

18
Where, however, a search for contraband by Customs officers is not made at or in the immediate vicinity of the point of international border crossing, the legality of the search must be tested by a determination whether the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and extent of surveillance, are such as to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of search was aboard the vehicle at the time of entry into the jurisdiction of the United States. Any search by Customs officials which meets this test is properly called a "border search". [See: Leeks v. United States, 356 F.2d 470 (9th Cir. 1966); King v. United States, supra, 348 F.2d 814; Marsh v. United States, 344 F. 2d 317 (5th Cir. 1965); Jones v. United States, supra, 326 F.2d at 130 (concurring opinion of Judge Duniway); Mansfield v. United States, supra, 308 F.2d 221; Cervantes v. United States, supra, 263 F.2d at 803, n. 5; Ramirez v. United States, 263 F.2d 385 (5th Cir. 1959); Bolger v. United States, 189 F.Supp. 237 (S.D.N.Y.1960), aff'd Bolger v. Cleary, 293 F.2d 368 (2nd Cir. 1961); United States v. Rodriquez, 195 F.Supp. 513 (S.D.Tex.1960), aff'd 292 F.2d 709 (5th Cir. 1961); United States v. Yee Ngee How, supra, 105 F.Supp. 517; People v. Furey, 42 Misc.2d 579, 248 N.Y.S.2d 460 (1962).]

19
It requires no discourse to convince that the work of Customs officials is made more effective by identification of the smugglers who bring in the contraband. To that end, it is not always advisable to make the search in the immediate vicinity of the point of border crossing. In the case at bar, the vehicle was placed under surveillance by Customs officers when it crossed the border and, except for a period of "possibly a minute to two minutes" when lost from view, was kept under constant watch as it made suspicious movements about the streets of Nogales, Arizona. Since the evidence discloses no reason to believe that there [was] any "change of condition of the auto from the time it crossed the border until it was stopped" [King v. United States, supra, 348 F.2d at 816], the fact that the vehicle was lost from view of the Customs officers for a brief period of time does not alter the character of the search as a "border search". Consequently, both the search and seizure were "reasonable", and hence lawful.

20
Appellant's arrest without a warrant followed this lawful search and seizure, and was incidental thereto. All circumstances considered, then, it is beyond question that there was ample probable cause to justify the arrest upon the theory that appellant and Arnold were confederates engaged in a common scheme and plan to bring narcotics into the United States contrary to law.

21
Equally without merit is appellant's further argument that failure to identify or produce the informer at the trial constituted a denial of due process. The informant was admittedly neither a participant in, nor a witness to, the crime charged in the indictment, and of which appellant stands convicted. [See: Hammond v. United States, supra, 356 F.2d 931; Cook v. United States, 354 F.2d 529 (9th Cir. 1965); Hurst v. United States, 344 F.2d 327 (9th Cir. 1965); Jones v. United States, supra, 326 F.2d 124.]

22
The only other issue raised by appellant here is as to the sufficiency of the evidence — especially of "possession." This issue was presented at the trial upon motion for "a directed verdict", which was treated as a motion for a judgment of acquittal under Rule 29(a) of the Federal Rules of Criminal Procedure. In ruling upon this motion, the trial court found, and we agree, that the evidence was sufficient to sustain a finding by the jury that appellant and Arnold were in joint constructive possession of the heroin involved, at least from the time that appellant entered the car in down-town Nogales until it was stopped for search on Highway 89. [See: Figueroa v. United States, 352 F.2d 587 (9th Cir. 1965); Arellanes v. United States, 302 F.2d 603, 606-607 (9th Cir. 1962).]

23
Appellant was fairly tried, and fairly convicted.

24
The judgment of the District Court is affirmed.


177 F.2d 75 (1949)
In re CARTER.
No. 9965.
United States Court of Appeals District of Columbia Circuit.
Decided August 1, 1949.
Writ of Certiorari Denied December 12, 1949.
Mr. George E. C. Hayes, Washington, D. C., with whom Messrs. James A. Cobb, Washington, D. C., and Howard Jenkins, Jr., were on the brief, for appellant.
Mr. Harold H. Bacon, Assistant United States Attorney, Washington, D. C., with whom Mr. George Morris Fay, United States Attorney, and Messrs. Ross O'Donoghue and John D. Lane, Assistant United States Attorneys, Washington, D. C., were on the brief, for the United States Attorney as amicus curiae, urging dismissal of the appeal. Mr. L. Clark Ewing, Assistant United States Attorney, Washington, D. C., also entered an appearance for amicus curiae.
Mr. Philip B. Perlman, Solicitor General of the United States, Washington, D. C., reargued on behalf of the United States Attorney as amicus curiae, urging dismissal of the appeal or affirmance of the orders.
Before CLARK, WILBUR K. MILLER and PRETTYMAN, Circuit Judges.
Writ of Certiorari Denied December 12, 1949. See 70 S.Ct. 250.
PRETTYMAN, Circuit Judge.
This is an appeal from orders of the District Court of the United States for the District of Columbia, which revoked the authority of appellant to do business as a bondsman in criminal cases in this jurisdiction.
The applicable statute is a local one. In pertinent part it provides: "It shall be the duty of the police court, juvenile court, and the criminal divisions of the District Court of the United States for the District of Columbia, each, to provide, under reasonable rules and regulations, the qualifications of persons and corporations applying for authority to engage in the bonding business in criminal cases in the District of Columbia, and the terms and conditions upon which such business shall be carried on, and no person or corporation shall, either as principal, or as agent, clerk, or representative of another, engage in the bonding business in any such court until he shall by order of the court be authorized to do so. Such courts, in making such rules and regulations, and in granting authority to persons to engage in the bonding business, shall take into consideration both the financial *76 responsibility and the moral qualities of the person so applying, and no person shall be permitted to engage, either as principal or agent, in the business of becoming surety upon bonds for compensation in criminal cases, who has ever been convicted of any offense involving moral turpitude, or who is not known to be a person of good moral character. * * * Each of said courts shall require the authority of each of said persons to be renewed from time to time at such periods as the court may by rule provide, and before said authority shall be renewed the court shall require from each of said persons an affidavit that since his previous qualification to engage in the bonding business he has abided by the provisions of this chapter, and any person swearing falsely in any of said affidavits shall be guilty of perjury."[1]
Pursuant to the statute, the District Court adopted rules which provided, among other things:
"I. Every individual desiring to engage in the bonding business in criminal cases in this Court shall file with the Court a written application under oath showing

* * * * * *
"(3) whether or not he has ever been convicted of an offense involving moral turpitude;
"(4) proof of good moral character of the applicant, attested by the statements of at least two residents of the District not related to the applicant;

* * * * * *
"III. An application containing like statements shall be filed by each individual authorized bondsman desiring to continue in said business every second year thereafter on the anniversary of the Court's approval of the original application, which application must also receive the approval of a Justice of this Court before the bondsman shall be entitled to continue to appear as surety on bonds or recognizances in this Court.

* * * * * *
"VIII. Any authorization given pursuant to these rules may be revoked for good cause at any time by any Justice of this Court."
It is clear from these rules that, as required by the statute, an applicant must show that he has not been convicted of an offense involving moral turpitude and that he is known to be of good moral character. It is also clear that the authorization is for a term, at the expiration of which the same considerations govern renewal as govern original approval; and that an authorization once given may be revoked for good cause.
Appellant Carter applied for and was granted authorization to engage in the business of executing bonds. He entered upon the business.
Several weeks later the judge who had approved this application called into question a statement in it. In response to Rule I(3), above-quoted, Carter had written that he had "never been charged and/or convicted of any offense involving moral turpitude". It appears that information came to the court that in 1928, some twenty years before present events, Carter had been charged three times with violation of the laws against gambling, and in 1935, thirteen years before, had been charged with receiving stolen property. Upon learning of these charges, the court called for an explanation and then issued a rule upon Carter to show cause why his authorization to engage in the bonding business should not be revoked.
Answer was made to the rule, and hearing was held upon it. It developed that Carter had never been convicted of any of the charges made against him and, indeed, had not even been tried upon any of them. All had been nolle prossed or dismissed. So the record stood that he had never been tried, much less convicted, of any offense, whether involving moral turpitude or not. It further developed that Carter's application for authority to engage in the bonding business had been prepared by a reputable, experienced and respected member of the bar. This attorney knew of the charges against Carter. He also knew that the statute and the rules required information as *77 to convictions only. But never having theretofore prepared one of these applications, he went to the District Court and copied the language from an application which had been approved. That application used the expression "charged and/or convicted". The attorney interpreted the expression, in view of the statute and the rules, as meaning charged and convicted or simply convicted, visualizing a case in which a person, having been charged with one offense, might be convicted of a lesser one.
The court concluded that the statement on the application had been made in good faith, not willfully or with purpose to deceive the court. Nevertheless, the court revoked the authorization. It did so upon the ground that if, in passing upon the original application, it had had before it the facts of the charges, it would have made further inquiry into the suitability of the applicant to be a bondsman. It considered that the language used in the application, reasonably interpreted, was a misrepresentation. The conclusion, as stated by the court, was:
"This matter involves a right of a citizen to engage in the business of writing bonds in criminal cases, and this applicant, according to the record as I have it before me, has made representations of material facts, facts which if they had been disclosed to me prior to the approval by me of the application would, I am sure, have induced me to make further inquiry and investigation to ascertain whether he is a suitable person, under the law, to engage in this business, of writing bonds in criminal cases.
"However, the answer to the rule to show cause, and the statements made to me in chambers, at the request of his attorney, disclose that the representation was not made willfully or with a purpose to deceive the Court, but was made on the advice of counsel who informed the petitioner that the language used would not constitute a misrepresentation. To that interpretation I cannot subscribe, and I am of the opinion that a reasonable interpretation of the language used is that it does constitute a misrepresentation.
"Nevertheless, I am led to the conclusion that it was given in good faith, partly because of the high standing of the applicant's counsel. I shall therefore pass an order revoking the authorization given by me to the approval of the application."
The court considered that its action revoking the authorization made the application a pending one. It directed that an investigation be made. Exactly what then happened is not shown by the record, but the brief of the United States Attorney refers to an investigation by his office and by the F.B.I. His later, or supplemental, brief refers to "information rendered available to the District Court as a result of the inquiry". Appellant says his information is that an investigation was made, but that the results were not spread upon the record but were sealed by the court and made unavailable to appellant by express instruction given to the clerk. Upon oral argument in this court, it was asserted and not denied that the District Court received a report from the F.B.I. and placed it in a sealed envelope, not to be opened. Counsel for appellant and counsel for the United States Attorney all say that they have not seen and do not know the contents of the report. The United States Attorney, as will later appear, defends the propriety of this course. In any event, Carter filed some twenty-five letters attesting to his character and standing. Six months after the hearing above described, and without further ado, the court entered an order denying Carter's application.
The United States Attorney, as amicus curiae, defends the action of the District Court. He does so upon the following reasoning: An authorization by the court to a person to engage in the bonding business is a purely administrative act and, therefore, revocable at its will; that such revocation may be made if the court is misled upon the authorization, even though the representations which it deems misleading were made in good faith, not willfully or with purpose to deceive; that the court may revoke for a reason which, if originally known, would have caused it to inquire further; and that when an application *78 has been replaced in a pending status by a revocation order, the court may receive and consider confidential and undisclosed information and, upon such information, deny the application.
The error in the foregoing reasoning is that it ignores the key and controlling fact in the situation. The application had been granted. Carter had an authorization. He was engaged in business. The action of the court was not to deny him something he was seeking; it was to deprive him of something which he had.
Examples could be multiplied to illustrate the vital effect of a grant by proper authority. An applicant for admission to the bar must satisfy the authorities as to his moral character, and custom has established confidential inquiry as an element of that procedure. But when he has been admitted, his removal from practice is a disbarment, about which elaborate procedural requirements are thrown. Such removal after admission is not a mere denial of an application for admission. The same is true in respect of licenses to do business in many forms. Prior to grant, many processes are available for inquiry and information. But, once granted, the license becomes a right, and due process of law must be followed to achieve deprivation. This is true even though the license is a severely qualified one, such as a radio license.[2]
It may be true that the grant of authority to engage in the bonding business is an administrative act. But the deprivation of that right, once granted, is a judicial act, requiring due process of law.
Two features of the statute here involved make clear that the authorization to engage in the bonding business is a form of license, and hence a right, to do business. The authorization is for a term, fixed by rules of the court. And it may be revoked "for good cause". These are the customary characteristics of a limited or qualified license or right.
Because of the nature of the argument by the United States Attorney, we emphasize two negatives. The case does not involve the power or the procedure of the District Court in granting these authorizations. It does not concern the power or procedure of that court in renewing an authorization upon expiration of the stated term.
The District Court believed that it could return an application to a pending status after a permit had been issued, solely because the court later learned of circumstances which, if originally known, would have caused it to make further inquiry upon the original application. This it cannot do, any more in this case than in an admistion to the bar or in respect to other forms of outstanding business licenses.
We hold that when an authorization to engage in the bonding business has been approved by the District Court and is outstanding, it can be revoked, prior to the expiration of its term, only upon a proceeding which contains the elements of due process of law, i. e., a hearing and revelation of all data upon which a decision is to be based.
The United States Attorney urges that the orders entered by the District Court are not appealable. The statute governing appeals allows them in respect to any final order.[3] That means judicial orders, of course. As we have pointed out, the orders in this proceeding were judicial orders and were, therefore, appealable. They were certainly final. The United States Attorney also lays stress upon the fact that there is no appellee. This is a common characteristic of many appealable proceedings, such as disbarments and similar matters.
The orders of the District Court will be
Reversed.
NOTES
[1]  47 Stat. 1484 (1933), D.C.Code § 23-608 (1940).
[2]  See National Broadcasting Co. v. Federal Communications Comm., 1943, 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374, and Ashbacker Radio Co. v. Federal Communications Comm., 1945, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108.
[3]  31 Stat. 1225 (1901), as amended, 41 Stat. 1312 (1921), D.C.Code § 17-101 (1940).


[Cite as State v. Ziska, 2014-Ohio-4692.]

                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA

                               JOURNAL ENTRY AND OPINION
                                       No. 101168

                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                       PATRICK ZISKA
                                                    DEFENDANT-APPELLANT

                                    JUDGMENT:
                              REVERSED AND REMANDED

                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-12-569007-A

        BEFORE: Celebrezze, J., Boyle, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: October 23, 2014
ATTORNEY FOR APPELLANT

Stephen L. Miles
20800 Center Ridge Road
Suite 405
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brett Kyker
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

      {¶1} Defendant-appellant, Patrick Ziska, appeals from his 11-year prison term.

After a careful review of the record and relevant case law, we reverse appellant’s

sentence and remand for proceedings consistent with this opinion.

                                 I. Procedural History

      {¶2} On November 29, 2012, the Cuyahoga County Grand Jury returned a

140-count indictment against appellant in Cuyahoga C.P. No. CR-12-569007-A. Counts 1

through 5 charged him with pandering sexually oriented matter involving a minor in

violation of R.C. 2907.322(A)(2). Counts 6 through 139 charged him with pandering

sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(1). Count

140 charged him with possession of criminal tools in violation of R.C. 2923.24(A).

      {¶3} On January 2, 2013, appellant entered a plea of not guilty to all counts as

indicted. On August 27, 2013, he withdrew his not guilty plea and pled guilty to Counts

1 through 100 and Count 140.

      {¶4} On February 25, 2014, appellant received a cumulative sentence of 11 years.

Specifically, the trial court sentenced him to eight years on Count 1 and three years on

Count 2, to run consecutively to each other but concurrently to the court’s sentence of

eight years on Counts 3 through 100 and one year on Count 140.

      {¶5} Appellant now brings this timely appeal, raising one assignment of error for

review.
                                  II. Law and Analysis

       {¶6} In his sole assignment of error, appellant argues that the trial court erred in

sentencing him to consecutive sentences.

                                    Standard of Review

       {¶7} R.C. 2953.08(G)(2) states that when reviewing felony sentences, “[t]he

appellate court’s standard for review is not whether the sentencing court abused its

discretion.” Rather, the statute states that if we “clearly and convincingly” find that (1)

“the record does not support the sentencing court’s findings under [R.C. 2929.14(C)(4)],”

or that (2) “the sentence is otherwise contrary to law,” then we “may increase, reduce, or

otherwise modify a sentence * * * or [we] may vacate the sentence and remand the matter

to the sentencing court for resentencing.” R.C. 2953.08(G)(2).

                                  Consecutive Sentences

       {¶8} Under R.C. 2929.14(C)(4), a trial court may impose consecutive multiple

prison terms for convictions on multiple offenses where the court makes the necessary

statutory findings. This court has interpreted the statute to require that the trial court make

separate and distinct findings apart from any findings relating to the purposes and goals of

criminal sentencing. State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527, ¶ 13.

 See also State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.).

       {¶9} R.C. 2929.14(C)(4) states:

       If multiple prison terms are imposed on an offender for convictions of
       multiple offenses, the court may require the offender to serve the prison
       terms consecutively if the court finds that the consecutive service is
       necessary to protect the public from future crime or to punish the offender
       and that consecutive sentences are not disproportionate to the seriousness of
       the offender’s conduct and to the danger the offender poses to the public,
       and if the court also finds any of the following:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed
       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
       was under post-release control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or
       more courses of conduct, and the harm caused by two or more of the
       multiple offenses so committed was so great or unusual that no single
       prison term for any of the offenses committed as part of any of the courses
       of conduct adequately reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from future crime
       by the offender.

       {¶10} In this case, the state concedes that “the trial court failed to find that

consecutive sentences were not disproportionate to the seriousness of appellant’s conduct

and to the danger [he] poses to the public.” We therefore vacate the sentence and

remand the case for the trial court to consider whether consecutive sentences are

appropriate under R.C. 2929.14(C)(4) and, if so, to make the required findings on the

record and incorporate those findings into the court’s sentencing entry. See State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.

       {¶11} Appellant’s sole assignment of error is sustained.

       {¶12} Reversed and remanded to the trial court for resentencing consistent with

this opinion.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, A.J., and
SEAN C. GALLAGHER, J., CONCUR


288 So.2d 807 (1974)
Lera CARMICHAEL
v.
STATE.
7 Div. 234.
Court of Criminal Appeals of Alabama.
January 15, 1974.
*808 H. Merrill Vardaman, Anniston, for appellant.
William J. Baxley, Atty. Gen. and Don C. Dickert, Sp. Asst. Atty. Gen., for the State.
TYSON, Judge.
The Grand Jury of Calhoun County, Alabama, indicted the appellant for the first degree murder of Bobby Harris by shooting him with a pistol. The Jury found the appellant guilty of murder in the second degree, and its verdict and judgment fixed punishment at ten years imprisonment in the penitentiary.
Between 2:00 and 3:00 a. m. on the morning of May 20, 1972, the deceased and his wife, Frances Harris, were overheard having an argument in their duplex apartment by the next door neighbors, Dorothy Hutchinson and her mother, Mary Hutchinson.
Dorothy Hutchinson testified that her mother telephoned Frances Harris' mother, Lera Carmichael, the appellant, and informed her of the argument next door. At about 3:00 a. m., Frances Harris came over to the Hutchinson apartment and used the telephone to call the police. The witness further testified that, while Frances was doing this, Lera Carmichael, the appellant, had arrived and gone into the Harris apartment. The witness stated that the appellant had her two sons and two daughters with her. After the appellant went inside, Dorothy Hutchinson said she heard "fighting." When the appellant and her family came out of the Harris apartment, Frances Harris left the Hutchinson apartment to join the appellant at the appellant's car, parked on the street. The witness stated that everyone got into the car, except the appellant, one of her sons, Ray, and Bobby Harris. The witness further stated that when Bobby Harris attempted to pull his wife and their two children from inside the car, Bobby and Ray got into a "fight," which lasted "five or ten minutes." Then the appellant's other son and two daughters joined in the affray. Then, Dorothy Hutchinson testified, Ray picked up a board and threw it at Bobby Harris. Bobby Harris picked up the board and threw it at the appellant, who was standing by the car. The appellant pulled a pistol from her purse and fired a shot at Bobby, who ran toward a nearby tree, fell, walked a short distance, then fell again. The witness stated that "Lera Carmichael's sons picked up the pistol." The witness testified that Bobby Harris did not have anything in his hands at the time he was shot. *809 This witness observed the event from her window, which faced the illuminated street.
The appellant's testimony contradicted that of the State's witness, Dorothy Hutchinson. The appellant testified that only her son, Marvin Carmichael, accompanied her to the Harris apartment. When they arrived, she went to the door of the apartment, knocked, then entered, and saw Bobby Harris holding Frances. The Harris' two children were crying. The appellant took the children outside while Bobby "pulled" at her. At this time appellant's son, Marvin, got out of the car and tried to pull Bobby Harris away from the appellant. The appellant put the children into the car where Frances Harris was already seated. When the appellant attempted to get into the car, Frances screamed, "Look out, mama"; that the appellant looked back and Bobby was "coming down over" her with a board. The appellant threw her left arm up for protection, and Bobby struck her, knocking her down on her knees. She stated that as he attempted to strike her again, she reached under the front seat of the car and got her pistol. From a kneeling position, she fired one time at Bobby. She stated that, after firing she dropped the pistol and "never did get it." She stated that Bobby Harris ran away from her, after she fired, then ran back toward her. About this time the police arrived. Her daughter's (Frances Harris') testimony corroborated that of the appellant.
Ray Carmichael testified that after the appellant went to the Harris apartment, he followed; that by the time he arrived, Bobby Harris had already been taken to the hospital.
Dr. A. N. Taylor testified that he treated the appellant sometime after 4:30 a. m. on May 20, 1972, in the emergency room of Anniston Memorial Hospital. He stated that her left arm had an acute injury, evidenced by swelling, pain, tenderness, and hematoma, and that the injury had been inflicted within a few hours prior to treatment.
Dr. K. K. Ratanaubol, a member of the Department of Pathology of Anniston Memorial Hospital, testified that on May 20, 1972, he performed an autopsy on Bobby Harris. He stated that his examination revealed scratch wounds on the forehead of the deceased, and a bullet wound in the upper part of the left buttock. The bullet traversed an upward path after entry, lacerated a vein, and lodged in the chest area. In his opinion death was caused by severe blood loss. He further stated that he found some dark gray areas at the bullet's point of entry into the body, but was not able to conclude that such discoloration was caused by powder burns.

I
The appellant contends that the State failed to prove a prima facie case of second degree murder.
Murder in the second degree is the unlawful killing of a human being with malice, but without deliberation or premeditation. Smith v. State, 47 Ala.App. 513, 257 So.2d 372; Young v. State, 47 Ala. App. 674, 260 So.2d 406; Miller v. State, 38 Ala.App. 593, 90 So.2d 166; Warren v. State, 34 Ala.App. 447, 41 So.2d 201.
In Miller, supra, we find:
"`Legal Malice' as an ingredient of murder is an intent to take human life without legal excuse, justification or mitigation, and it may be presumed from the use of a deadly weapon, unless the evidence which proves the killing rebuts the presumption. Coates v. State, 1 Ala. App. 35, 56 So. 6; Warren v. State, supra."
Here, the appellant's use of the pistol presented sufficient evidence from which the Jury could infer that she acted with malice.
*810 The fact that the appellant denied having intended to kill the deceased is not a proper criteria.
In Rogers v. State, 49 Ala.App. 78, 268 So.2d 859, this Court noted:
"However, as to second degree murder, the crime for which appellant stands convicted, the law in Alabama is such that a finding of specific intent to kill is unnecessary to support a conviction. Smith v. State, 154 Ala. 31, 45 So. 626; Titus v. State, 117 Ala. 16, 23 So. 77; Fowler v. State, 155 Ala. 21, 45 So. 913 . . . ."
The conflict in the evidence presented a question for the Jury to determine, and the evidence was sufficient, if believed by the Jury, under the required rule to support the verdict. Miller v. State, 38 Ala.App. 593, 90 So.2d 166; Rogers v. State, supra.

II
The appellant contends that the trial court's oral charge generally placed too great a burden on the appellant.
We have examined the oral charge and find that the trial judge did charge the Jury on the elements of self-defense.
Moreover, at the conclusion of the oral charge to the Jury, the appellant's trial attorney announced, "The defendant is satisfied, Your Honor."
As stated by this Court in Massey v. State, 49 Ala.App. 341, 272 So.2d 267, cert. den. 289 Ala. 747, 272 So.2d 270:
". . . Where, as here, appellant's counsel did not make an exception to the oral charge, but to the contrary, replied, "Satisfied," and did not ask for any clarifying instructions, nothing is here presented for review. Cox v. State, 280 Ala. 318, 193 So.2d 759; Allison v. State, 281 Ala. 193, 200 So.2d 653; Passmore v. State, 47 Ala.App. 189, 252 So. 2d 115; Darby v. State, 48 Ala.App. 421, 265 So.2d 449."
We have carefully examined this record, as required by Title 15, Section 389, Code of Alabama 1940, and find same to be free from error. The judgment is due to be and the same is hereby
Affirmed.
All the Judges concur.


17 F.3d 394
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Vincent Sharnee JOHNSON, Plaintiff-Appellant,v.Eddie YLST, Warden;  Ward Brown, Chief Medical Officer,Defendants-Appellees.
No. 93-15691.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 20, 1993.*Decided Jan. 7, 1994.

Before:  SNEED, NOONAN, and TROTT, Circuit Judges.

1
MEMORANDUM**

2
Vincent Sharnee Johnson, a California state prisoner, appeals pro se the district court's order granting summary judgment to defendant Ylst.  We conclude that we lack jurisdiction for want of a final appealable order, and we dismiss the appeal.

3
While neither party has raised the issue of jurisdiction, we consider our jurisdiction sua sponte.   Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1985).  A district court order dismissing some but not all of the defendants is not a "final decision" appealable under 28 U.S.C. Sec. 1291.   McGuckin v. Smith, 974 F.2d 1050, 1053 n. 1 (9th Cir.1992);   Patchick v. Kensington Publishing Corp., 743 F.2d 675, 677 (9th Cir.1984) (per curiam).  Nevertheless, upon an express determination that there is no just reason for delay and upon an express instruction for the entry of judgment, the district court may direct the entry of a final judgment as to one or more but fewer that all of the claims.  Fed.R.Civ.P. 54(b);   Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir.1985).  Without a Rule 54(b) certification, orders dismissing some but not all of the defendants or claims are not final.  Fed.R.Civ.P. 54(b);  Frank Briscoe Co., 776 F.2d at 1416.

4
Here, Johnson's second amended complaint was served on two named defendants, Ylst and Brown.  Both Ylst and Brown answered Johnson's complaint.  On 3 April 1992, Ylst filed a motion for judgment on the pleadings or, in the alternative, summary judgment.  On 18 March 1993, the district court adopted the magistrate judge's report and recommendation granting summary judgment for Ylst.

5
Johnson's notice of appeal was filed on 13 April 1993.  Defendant Brown remained in the action after the district court granted summary judgment for Ylst.  Therefore, the district court's order granting summary judgment for Ylst is not a "final decision" appealable under 28 U.S.C. Sec. 1291.   See McGuckin, 974 F.2d at 1053 n. 1.  Moreover, because the district court has not issued a Rule 54(b) certification, the order is not appealable.  See Frank Briscoe Co., 776 F.2d at 1416.

6
Accordingly, this appeal is premature and is dismissed for lack of jurisdiction.

7
DISMISSED.

*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed.R.App.P. 34(a);  9th Cir.R. 34-4

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3