Gutierrez v. Commissioner of Social Security
JUDGMENT in favor of Commissioner of Social Security against Luis Gutierrez Signed by Deputy Clerk on 11/10/2014. (JNB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 8:13-cv-1668-T-PDB
COMMISSIONER OF SOCIAL
JUDGMENT IN A CIVIL CASE
Decision by Court.
This action came before the Court and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that judgment is entered in favor of the
Commissioner of Social Security.
SHERYL L. LOESCH, CLERK
s/J. Bowerman, Deputy Clerk
CIVIL APPEALS JURISDICTION CHECKLIST
Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final,
appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b), Williams
v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys’ fees and
costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.
Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
Appeals pursuant to 28 U.S.C. Section 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing
or dissolving injunctions or refusing to dissolve or modify injunctions...” and from “[i]nterlocutory decrees...determining the rights
and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders
denying temporary restraining orders are not permitted.
Appeals pursuant to 28 U.S.C. Section 1292(b) and Fed.R.App.P.5: The certification specified in 28 U.S.C. Section 1292(b)
must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion
for certification is not itself appealable.
Appeals from final orders pursuant to 28 U.S.C. Section 1291: Only final orders and judgments of district courts, or final orders
of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. Section 158, generally are
appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the
judgment.” Pitney Bowes, Inc. V. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge’s report and recommendation
is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. Section 636(c).
Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but
not limited to: Cohen V. Beneficial Indus. Loan Corp., 337 U.S. 541,546,69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic
Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F. 2d 371, 376 (11th Cir. 1989); Gillespie v. United States
Steel Corp., 379 U.S. 148, 157, 85 S. Ct. 308, 312, 13 L.Ed.2d 199 (1964).
Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir.
2001). In civil cases, Fed.R.App.P.4(a) and (c) set the following time limits:
Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the
district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or
agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE
MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL
PERIOD - no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after
the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
Fed.R.App.P.4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type
specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely
Fed.R.App.P.4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of
appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the
time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the
time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment
or order, and that no party would be prejudiced by an extension.
Fed.R.App.P.4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice
of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may
be shown by a declaration in compliance with 28 U.S.C. Section 1746 or a notarized statement, either of which must set forth the
date of deposit and state that first-class postage has been prepaid.
Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also
Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions
in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
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