Alberts v. Wheeling Jesuit University ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2181
STEPHEN ALAN ALBERTS, II, Ed.D.,
Plaintiff – Appellant,
v.
WHEELING JESUIT UNIVERSITY; LETHA ZOOK,
Defendants – Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:09-cv-00109-FPS)
Submitted: January 8, 2010 Decided: January 29, 2010
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Stephen Alan Alberts, II, Appellant Pro Se. Christopher Paull
Riley, BAILEY, RILEY, BUCH & HARMAN, LC, Wheeling, West
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen Alan Alberts, II, seeks to appeal an order
entered by the U.S. District Court for the Western District of
Pennsylvania adopting the magistrate judge’s report and
recommendation and transferring his case to the Northern
District of West Virginia. Because the order Alberts seeks to
appeal was entered by the District Court for the Western
District of Pennsylvania, an appeal from an order of that court
may only be taken to the U.S. Court of Appeals for the Third
Circuit, which embraces that district court. See 28 U.S.C.
§ 1294 (2006). Accordingly, this court cannot consider
Alberts’s challenge to the transfer order.
Further, we decline to transfer this appeal to the
Court of Appeals for the Third Circuit. Pursuant to 28 U.S.C.
§ 1631 (2006), when an appeal is noticed for a circuit court,
and the court finds “that there is a want of jurisdiction, the
court shall, if it is in the interest of justice, transfer such
action or appeal to any other such court in which the action or
appeal could have been brought at the time it was filed or
noticed.” We conclude, however, that while there is a want of
jurisdiction in this court, transfer to the Third Circuit Court
of Appeals is not in the interest of justice because Alberts’s
appeal is otherwise interlocutory. Circuit courts may exercise
jurisdiction only over final orders, 28 U.S.C. § 1291 (2006),
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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, 546-47 (1949). The order Alberts
seeks to appeal is neither a final order nor an appealable
interlocutory or collateral order. See In re Carefirst of Md.,
Inc., 305 F.3d 253, 255-56 (4th Cir. 2002); Carteret Sav.
Bank v. Shushan, 919 F.2d 225, 230 (3d Cir. 1990) (holding
28 U.S.C. § 1406 (2006) transfer order is not an appealable
collateral order).
Accordingly, we deny Alberts’s motion to find for
damages in his favor and dismiss the appeal for lack of
jurisdiction. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED
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