Lauro v. Commissioner of Social Security , 644 F. App'x 88 ( 2016 )

15-696
Lauro v. Comm’r of Soc. Sec.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 25th day of March, two thousand sixteen.
4
5 PRESENT:
6 DENNIS JACOBS,
7 PETER W. HALL,
8 Circuit Judges,
9 JANE A. RESTANI,*
10 Judge.
11 _____________________________________
12
13 Umberto Lauro,
14
15 Plaintiff-Appellant,
16
17 v. 15-696
18
19 Commissioner of Social Security,
20
21 Defendant-Appellee,
22
23 Carmel Sullivan, et al.,
24
25 Defendants.
26 _____________________________________
27
28 FOR PLAINTIFF-APPELLANT: Umberto Lauro, pro se, Rome, NY.
29
* The Honorable Jane A. Restani, Judge for the United States Court of International
Trade, sitting by designation.
1
2 FOR DEFENDANT-APPELLEE: Benil Abraham, Special Assistant
3 United States Attorney, New York,
4 NY, for Richard S. Hartunian, United
5 States Attorney for the Northern
6 District of New York.
7
8 Appeal from an order of the United States District Court for the Northern District of New
9 York (D’Agostino, J.).
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
11 DECREED that the appeal is DISMISSED for lack of jurisdiction.
12 Appellant Umberto Lauro, pro se, appeals the district court’s denial of his motion to reopen
13 his civil action. His motion sought review of a decision rendered by the Commissioner of Social
14 Security following the district court’s remand for further administrative proceedings pursuant to
15 “sentence six” of 42 U.S.C. § 405(g). We assume the parties’ familiarity with the underlying
16 facts, the procedural history of the case, and the issues on appeal.
17 We have appellate jurisdiction over “final decisions of the district courts.” In re Roman
18 Catholic Diocese of Albany, N.Y., Inc., 745 F.3d 30, 35 (2d Cir. 2014). A final decision
19 conclusively determines the pending claims of all parties to the litigation unless the district court
20 directs entry of a final judgment as to dismissed claims or parties pursuant to Federal Rule of Civil
21 Procedure 54(b). Rolon v. Henneman, 517 F.3d 140, 144-45 (2d Cir. 2008). “To test for finality,
22 reviewing courts employ a ‘practical rather than a technical’ analysis. . . . [I]f a ‘matter remains
23 open, unfinished or inconclusive, there may be no intrusion by appeal.’” United States ex rel.
24 Polansky v. Pfizer, Inc., 762 F.3d 160, 163 (2d Cir. 2014) (quoting Cohen v. Beneficial Indus.
25 Loan Corp., 337 U.S. 541, 546 (1949)).
2
1 Sentence six of § 405(g) permits remand for further administrative proceedings without
2 any substantive ruling as to the correctness of the agency decision, and is therefore
3 non-appealable. Raitport v. Callahan, 183 F.3d 101, 104 (2d Cir. 1999). Furthermore, if we
4 lack jurisdiction to review an interlocutory order of the district court, we generally will also lack
5 jurisdiction to review a subsequent interlocutory order denying reconsideration of that order. See
6 Petrello v. White, 533 F.3d 110, 114 (2d Cir. 2008).
7 Here, the district court’s underlying judgment (remanding the case for further
8 administrative proceedings pursuant to sentence six) is interlocutory and non-appealable. See
9 Raitport, 183 F.3d at 104. Lauro appeals from the district court’s 2014 order denying his
10 post-judgment motion to reopen rather than from the 2013 judgment remanding the case. But in
11 any event, the denial of a motion that seeks reconsideration of the remand order is likewise not
12 appealable under Petrello. Accordingly, we lack jurisdiction over this appeal because a final
13 order has not been entered. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). Upon
14 due consideration, it is hereby ORDERED that the appeal is DISMISSED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
3