Masster Yewsefth, I v. Carolyn Colvin, No. 15-2290 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-2290 MASSTER YEWSEFTH, I, Plaintiff - Appellant, v. CAROLYN W. COLVIN, Acting Commissioner of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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Commissioner’s insurance that denial benefits the of and district Yewsefth’s supplemental court claims affirm for security the disability income. The district court referred Yewsefth’s case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (2012). judge recommended affirming the Commissioner’s The magistrate decision and advised Yewsefth that failure to file timely objections to this recommendation would waive appellate review of a district court order based objections, thereafter upon the Yewsefth accepted recommendation. filed the an appeal. magistrate Instead The judge’s of district filing court 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 2 Cir. 1981) refers (holding that, dispositive § 636(b)(1)(B), when matter district district to court court magistrate obligated to specifically judge conduct under 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 consideration court of enters the a final Equip. appeal. judgment Fin. prior Group v. Comput. Brokers, 973 F.2d 345, 347-48 (4th Cir. 1992). not all premature notices of appeal are to our Traverse However, 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 v. of of a claims Mackey, 351 multiple an Curtiss-Wright Corp. v. Gen. Elec., 446 U.S. 1, 7 Roebuck course disposition action.’” Sears, the ultimate claim (quoting in “‘an individual (1980) entered is 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 3 Mortg. Ins., 498 U.S. 269, 276 (1991) (notice of appeal from clearly interlocutory decision cannot serve as notice of appeal from final judgment). recommendation was Because interlocutory the and magistrate could not judge’s have been certified under Rule 54(b), the doctrine of cumulative finality does not apply here. magistrate judge’s jurisdiction. Thus, we dismiss Yewsefth’s appeal of the report and recommendation for lack of 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 4
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