National Corn Growers Association, Inc. and National Corn Refiners Association, Inc., sought declaratory and injunctive relief in a suit brought against Inter alia, the United States Secretary of Agriculture and the United States Department of Agriculture, alleging unlawful implementation of the "de la Garza amendment," section 902(2) of the Food and Agriculture Act of 1977, 7 U.S.C.A. § 1446(f) (1979 Supp.). The amendment directed the Secretary of Agriculture to implement a price support program for the 1977 and 1978 sugar beet and sugar cane crops in the form of purchases or loans.^[1] The amendment contained an exception, subsection (3), to protect sugar processors whose crop years prevented their participation in the 1977 and 1978 crop loan program authorized by the amendment.^[2] It allowed interim price support programs other than purchase and loan programs authorized by the amendment, namely payments or subsidies made directly to processors, for "that portion of the 1977 crop of sugar cane and sugar beets marketed prior to the implementation of the program authorized by this subsection (the amendment's loan or purchase program)."

Generally sustaining plaintiffs' allegations, the district court held: (1) Implementation of the loan program authorized by the amendment was illegally delayed past its effective date, October 1, 1977; and (2) the interim direct subsidy program instituted pursuant to subsection (3)'s exception to the amendment was illegally continued past the date the loan program was implemented. According to the court's ruling, all sugar processors who entered into contracts for the sale of sugar after October 1, 1977, were not eligible for the interim direct subsidy payments.

The district court granted partial summary judgment on count I of the complaint, expressly deferring "the assessment of any substantive relief . . . until the present status of the loan program and the full impact of damages sustained, if any, has been ascertained." The court determined the judgment should be certified pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.

While the Rule 54(b) certification was appropriate to remove finality problems caused by appeal of judgment on only one count of the multiple claim action, a Rule 54(b) certificate does not make partial adjudication of one of several claims final if it is not otherwise a final decision. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 437, 76 S.Ct. 895, 100 L.Ed. 1297 (1956); 6 Moore's Federal Practice P 54.30(1) (2d ed. 1976). The judgment on count I is not final. It leaves undetermined substantial issues concerning injunctive relief and damages. In contrast, a final decision is "one which ends the litigation . . . and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). A declaration of rights is not an appealable order, in the absence of a permissive interlocutory appeal under 28 U.S.C. § 1292(b), when claims to injunctive relief or damages remain. Beare v. Briscoe, 498 F.2d 244 n.1 (5th Cir. 1974); Cf. Western Geophysical Co., Inc. v. Bolt Associates, Inc., 463 F.2d 101 (2d Cir.), Cert. denied, 409 U.S. 1040, 93 S.Ct. 523, 34 L.Ed.2d 489 (1972) (non-appealable when injunctive claims dismissed, judgment entered, damages not fixed); See also 9 Moore's Federal Practice, Supra P 110.08(1) at 116-18.

Moreover, unresolved and difficult issues in fashioning injunctive relief and determining damages bear directly upon substantial issues raised on appeal: standing to sue and mootness. Standing involves the question of economic injury In fact to the corn sweetener industry, as competitors, from payments illegally made to sugar processors, a question which may be indirectly related to the question of whether relief may be granted. Mootness is alleged because the 1977 and 1978 price support programs have been terminated for all practical purposes; the present status of the loan program is, of course, central to fashioning of relief. Disputed discovery proceedings related to the issue of relief are ongoing. The relationship between the issues of standing, mootness and fashioning of appropriate relief illustrates the impropriety of review at this stage of the litigation.

Accordingly, the appeal is ordered dismissed for lack of jurisdiction.