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Whaley v. Commissioner of Social Security
United States District Court, M.D. Florida, Tampa Division
March 23, 2018
CALVIN WHALEY, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
JUDGMENT IN A CIVIL CASE
by Court. This action came before the Court and a
decision has been rendered.
IS ORDERED AND ADJUDGED that judgment is entered in
favor of the Commissioner of Social Security.
Appealable Orders: Courts of
Appeals have jurisdiction conferred and strictly limited by
(a) 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).
(b) 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).
(c) 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.
(d) 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.
(e) 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
(a) 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.
(b) 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
(c) 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 filed motion.
(d) 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
(e) 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 ...
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