Masster Yewsefth, I v. Carolyn Colvin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cv-00531-RAJ-RJK. Copies to all parties and the district court/agency. [999783483]. Mailed to: Masster Yewsefth, I. [15-2290]

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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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Cir.

1981)

refers

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(holding

that,

dispositive

§ 636(b)(1)(B),

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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

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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).

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