Kant v. Apfel, Commissioner ( 1997 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    DOROTHY KANT,
    Plaintiff-Appellant,
    and
    SEYMOUR KANT,
    Plaintiff,                             No. 96-2798
    v.
    KENNETH S. APFEL, COMMISSIONER OF
    SOCIAL SECURITY,
    Defendant-Appellee.
    DOROTHY KANT,
    Plaintiff-Appellant,
    and
    SEYMOUR KANT,
    Plaintiff,                             No. 97-1248
    v.
    KENNETH S. APFEL, COMMISSIONER OF
    SOCIAL SECURITY,
    Defendant-Appellee.
    Appeals from the United States District Court
    for the District of Maryland, at Baltimore.
    Alexander Williams, Jr., District Judge;
    Clarence E. Goetz, Chief Magistrate Judge.
    (CA-95-3079-AW)
    Submitted: December 9, 1997
    Decided: December 31, 1997
    Before HALL, LUTTIG, and WILLIAMS, Circuit Judges.
    _________________________________________________________________
    No. 96-2798 dismissed and No. 97-1248 affirmed by unpublished per
    curiam opinion.
    _________________________________________________________________
    COUNSEL
    Dorothy Kant, Appellant Pro Se. Charles Joseph Peters, Sr., OFFICE
    OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
    Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Dorothy Kant appeals the dismissal of her claim that her Social
    Security retirement benefits were improperly calculated. On October
    28, 1996, the magistrate judge issued an order granting Defendant's
    motion for summary judgment, entering judgment for Defendant, and
    directing that the case be closed. Kant's notice of appeal was filed on
    November 20, and the appeal was docketed on December 16 (No. 96-
    2798). On November 25, the magistrate judge entered an order
    rescinding the October 28 order and reopening the case. The magis-
    trate judge then entered a report and recommendation in place of the
    previous final order.
    On December 27, the district court entered a final order adopting
    the report and recommendation of the magistrate judge. On January
    21, 1997, Kant filed an informal brief in appeal No. 96-2798 entitled
    "INFORMAL BRIEF FOR THE APPEAL OF JUDGE ALEXAN-
    2
    DER WILLIAM'S CLOSEOUT ORDER OF 27 DECEMBER,
    1996." On February 18, 1997, Kant filed a notice of appeal of the dis-
    trict court's December 27, 1996 order (No. 97-1248).
    Appellee filed a motion to dismiss in each case. Appellee seeks dis-
    missal of No. 96-2798 on the ground that this court lacks jurisdiction
    because the order appealed from was erroneously entered and subse-
    quently rescinded. Appellee seeks dismissal of No. 97-1248 for fail-
    ure to file an informal brief. On appeal, Kant contends that the SSA
    incorrectly determined her "primary insurance amount."
    We grant Appellee's motion to dismiss No. 96-2798, because this
    is an appeal from an erroneously entered order that was later
    rescinded. As such, we have no jurisdiction over this appeal.
    Under Fed. R. Civ. P. 60(a), the district court retains jurisdiction
    to correct clerical mistakes during the pendency of an appeal until
    such time as the appeal is docketed. Rule 60(a) applies when "the
    court intended one thing but by merely clerical mistake or oversight
    did another" and does not apply in cases of an error of substantive
    judgment. Dura-Wood Treating Co. v. Century Forest Indus., 
    694 F.2d 112
    , 114 (5th Cir. 1982). In this case, the magistrate judge
    entered a final order, without the required consent of all parties pursu-
    ant to 
    28 U.S.C.A. § 636
    (c) (West Supp. 1997). As such, the magis-
    trate judge only had jurisdiction to issue a report and
    recommendation. See 
    28 U.S.C. § 636
    (b)(1) (1994). When the magis-
    trate judge realized this, he rescinded his previous order and filed a
    report and recommendation.
    We find that the entry of a "final order" by the magistrate judge
    was a "clerical" error, and as such, the magistrate judge retained the
    necessary jurisdiction to rescind this order until such time as the
    notice of appeal was docketed. The rescission was purely a procedural
    matter and did not in any way affect the merits of Kant's case. Kant
    was afforded her right to object to the magistrate judge's report under
    § 636(b)(1), and her appeal of the district court's resulting adoption
    of the report is now before the court (No. 97-1248). Therefore,
    because neither party's substantive rights were affected by the magis-
    trate judge's rescission order, the error was correctable under Rule
    60(a). See Matter of West Texas Mktg., 
    12 F.3d 497
    , 504-05 (5th Cir.
    3
    1994); see also Olle v. Henry & Wright Corp., 
    910 F.2d 357
    , 363 (6th
    Cir. 1990). Thus, the appeal in No. 96-2798 is dismissed.
    Because Kant filed an informal brief in No. 97-1248 (albeit prema-
    ture and mislabelled), we deny Appellee's motion to dismiss this
    appeal. We have reviewed the merits of the appeal in No. 97-1248,
    including the record and the district court's opinion accepting the
    report and recommendation of the magistrate judge, and we find no
    reversible error. Accordingly, we affirm on the reasoning of the dis-
    trict court. Kant v. Apfel, No. CA-95-3079-AW (D. Md. Dec. 30,
    1996). 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.
    No. 96-2798 - DISMISSED
    No. 97-1248 - AFFIRMED
    4