Masster Yewsefth, I v. Carolyn Colvin ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2290
MASSTER YEWSEFTH, I,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security
Administration,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert J. Krask, Magistrate
Judge. (2:14-cv-00531-RAJ-RJK)
Submitted: March 11, 2016 Decided: March 29, 2016
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Masster Yewsefth, I, Appellant Pro Se. George Maralan Kelley,
III, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Masster Yewsefth, I, seeks to appeal the magistrate judge’s
report recommending that the district court affirm the
Commissioner’s denial of Yewsefth’s claims for disability
insurance benefits and supplemental security income. The
district court referred Yewsefth’s case to a magistrate judge
pursuant to 28 U.S.C. § 636(b)(1)(B) (2012). The magistrate
judge recommended affirming the Commissioner’s decision and
advised Yewsefth that failure to file timely objections to this
recommendation would waive appellate review of a district court
order based upon the recommendation. Instead of filing
objections, Yewsefth filed an appeal. The district court
thereafter accepted the magistrate judge’s recommendation;
however, Yewsefth failed to file an amended notice of appeal.
We may exercise jurisdiction only over final decisions, 28
U.S.C. § 1291 (2012), and certain interlocutory and collateral
orders. 28 U.S.C. § 1292 (2012); Fed. R. Civ. P. 54(b); Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949).
“Absent both designation by the district court and consent of
the parties” pursuant to 28 U.S.C. § 636(c) (2012), a magistrate
judge’s report and recommendation is neither a final order nor
an appealable interlocutory or collateral order. Haney v.
Addison, 175 F.3d 1217, 1219 (10th Cir. 1999); see Aluminum Co.
of Am. v. U.S. Envtl. Prot. Agency, 663 F.2d 499, 501-02 (4th
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Cir. 1981) (holding that, when district court specifically
refers dispositive matter to magistrate judge under
§ 636(b)(1)(B), district court obligated to conduct de novo
determination of magistrate judge’s order).
When a notice of appeal is premature, the jurisdictional
defect can be cured under the doctrine of cumulative finality if
the district court enters a final judgment prior to our
consideration of the appeal. Equip. Fin. Group v. Traverse
Comput. Brokers, 973 F.2d 345, 347-48 (4th Cir. 1992). However,
not all premature notices of appeal are subject to the
cumulative finality rule; instead, this doctrine applies only if
the appellant appeals from an order that the district court
could have certified for immediate appeal under Fed. R. Civ. P.
54(b). In re Bryson, 406 F.3d 284, 287-89 (4th Cir. 2005). A
district court may certify an order for immediate appeal under
Rule 54(b) if the order is “‘an ultimate disposition of an
individual claim entered in the course of a multiple claims
action.’” Curtiss-Wright Corp. v. Gen. Elec., 446 U.S. 1, 7
(1980) (quoting Sears, Roebuck v. Mackey, 351 U.S. 427, 436
(1956)).
“[A] premature notice of appeal from a clearly
interlocutory decision” cannot be saved under the doctrine of
cumulative finality. Bryson, 406 F.3d at 288 (internal
quotation marks omitted); see also FirsTier Mortg. v. Inv’rs
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Mortg. Ins., 498 U.S. 269, 276 (1991) (notice of appeal from
clearly interlocutory decision cannot serve as notice of appeal
from final judgment). Because the magistrate judge’s
recommendation was interlocutory and could not have been
certified under Rule 54(b), the doctrine of cumulative finality
does not apply here. Thus, we dismiss Yewsefth’s appeal of the
magistrate judge’s report and recommendation for lack of
jurisdiction. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
DISMISSED
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