DAY-PETRANO v. ASTRUE et al

Filing 46

REQUEST FOR REMAND: Due to the Plaintiff's premature filing of 38 Notice of Appeal, 39 Motion for IFP, the Court lacked jurisdiction to adopt the magistrate's R&R and that order will be vacated by separate order. Cour t requests that the USCA for Eleventh Circuit relinquish jurisdiction and remand this case to district court. Parties are directed not to file an amended notice of appeal or amended motion for IFP until this matter is remanded and a final order is entered. Signed by SENIOR JUDGE MAURICE M PAUL on 5/8/2013. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
MARY KATHERINE DAY-PETRANO,
Plaintiff,
v.

CASE NO. 1:12-cv-00097-MP-CAS

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
et al.,
Defendants.
_____________________________/
REQUEST FOR REMAND
This matter is before the Court on plaintiff’s Notice of Appeal (doc. 38) and Motion to
Proceed in forma pauperis on Appeal (doc. 39). Both documents were filed on May 1, 2013,
prior to entry of the Court’s order adopting the magistrate judge’s Report and Recommendation.
(See doc. 40). As the magistrate judge has pointed out, if the Report and Recommendation has
“not been adopted by the district court at the time” the notice of appeal is filed, then “the report
and recommendation is not final and appealable.” Perez-Priego v. Alachua County Clerk of
Court, 148 F.3d 1272, 1273 (11th Cir. 1998). Nevertheless, plaintiff’s notice of appeal was
transmitted to the United States Court of Appeals for the Eleventh Circuit.
The timing of plaintiff’s notice of appeal has created some confusion within the Court
and the magistrate judge has entered an order directing the plaintiff to file an amended notice of
appeal if they desire to appeal the Court’s order adopting the Report and Recommendation.
However, plaintiff’s notice of appeal divests this Court of jurisdiction over the matters at issue in
the appeal, except to the extent that this Court must act in aid of the appeal. United States v.
Hitchmon, 602 F.2d 689, 692 (5th Cir. 1979) (en banc). As such, the Court lacked jurisdiction to

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adopt the magistrate’s Report and Recommendation and that order shall be vacated by separate
order.
The Court respectfully requests that the United States Court of Appeals for the Eleventh
Circuit relinquish jurisdiction and remand this case to the district court so that this matter may be
resolved in the most expedient manner. Despite the magistrate judge’s order, the parties are
directed not to file an amended notice of appeal or amended motion to proceed in forma pauperis
on appeal until this matter is remanded and a final order is entered.
DONE AND ORDERED this

8th day of May, 2013

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge

Case No: 1:12-cv-00097-MP-CAS