Kant v. Apfel, Commissioner

UNPUBLISHED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No. 96-2798 dismissed and No. 97-1248 affirmed by unpublished per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Unpublished opinions are not binding precedent in this circuit.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-
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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.
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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
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