Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-2008

Stevens v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4167




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"Stevens v. Comm Social Security" (2008). 2008 Decisions. Paper 835.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-4167


                               VANDETTA A. STEVENS,
                                                  Appellant

                                            v.

                      COMMISSIONER OF SOCIAL SECURITY


                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 07-cv-00115J)
                       District Judge: Honorable Kim R. Gibson


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 10, 2008

                Before: AMBRO, FUENTES and FISHER, Circuit Judges

                              (Opinion filed: July 16, 2008)


                                        OPINION


PER CURIAM

       On May 22, 2007, Vandetta A. Stevens filed a complaint to protest an

administrative law judge’s order dismissing her administrative appeal as untimely filed.

Stevens applied for, and the District Court granted her, in forma pauperis status pursuant
to 28 U.S.C. § 1915. On October 4, 2007, the District Court warned Stevens that her

complaint would be dismissed on October 23, 2007, for failure to effect service unless

she showed good cause for the failure. On October 23, 2007, the District Court dismissed

Stevens’s complaint, noting that she had not responded to the earlier October order. On

October 24, 2007, the District Court docketed Stevens’s notice of appeal (dated October

18, 2007, and bearing an October 19, 2007 postmark date) from the October 4, 2007

order.

         Although both parties, focusing on the October 23, 2007 order, assume we have

jurisdiction over this appeal, we must consider our jurisdiction as a preliminary matter.1

Appellate jurisdiction attaches over an appeal from a final order under 28 U.S.C. § 1291,




   1
     If Stevens had filed a notice of appeal in response to the October 23, 2007 order
dismissing her complaint without prejudice, the parties’ assumption would be safe. The
dismissal without prejudice was a final decision, because Stevens would be time-barred
from refiling her complaint. See Ahmed v. Dragovich, 

, 207 (3d Cir. 2002)
(holding that an order dismissing a claim without prejudice is a final and appealable order
if the statute of limitations for that claim has expired); 42 U.S.C. § 405(g) (providing a
sixty-day limitations period for seeking judicial review of a decision by the Commissioner
of Social Security). We would review the District Court’s decision for abuse of
discretion. See Petrucelli v. Bohringer & Ratzinger, 

, 1308 (3d Cir. 1995).
If we could review the District Court’s final order, we would need to consider vacating it.
Rule 4(m) of the Federal Rules of Civil Procedure, on which the District Court relied,
provides that if a plaintiff does not effect service within 120 days after filing a complaint,
the District Court “shall dismiss the action without prejudice . . . or direct that service be
effected within a specific time.” Fed. R. Civ. P. 4(m). However, under Rule 4(c)(2), the
District Court is obligated to appoint a United States marshal or deputy United States
marshal to effect service when a plaintiff is permitted to proceed in forma pauperis, as
Stevens was. Fed. R. Civ. P. 4(c)(2). It does not appear that any person was appointed to
effect service on Stevens’s behalf in accordance with Rule 4(c)(2).

                                              2
from a collateral order under the doctrine of Cohen v. Beneficial Indus. Loan Corp., 

, 546 (1949), from an appropriate order relating to the grant or denial of

injunctive relief under 28 U.S.C. § 1292(a), and from questions certified pursuant to 28

U.S.C. § 1292(b) or Federal Rule of Civil Procedure 54(b). See In re Briscoe, 

, 211 (3d Cir. 2006). The only avenue for review in question in this case is 28 U.S.C.

§ 1291.

       For jurisdiction to attach under 28 U.S.C. § 1291, there must be a District Court

decision that “‘ends the litigation on the merits and leaves nothing for the court to do but

execute the judgment.’” See Coopers & Lybrand v. Livesay, 

, 467 (1978)

(quoting Catlin v. United States, 

, 233 (1945)). A judgment must be final as

to all parties, all causes of action, and the whole subject-matter. See Andrew v. United

States, 

, 340 (1963) (citing Collins v. Miller, 

(1920)); Mellon

Bank, N.A. v. Metro Communications, Inc., 

, 640 (3d Cir. 1991).

       The District Court’s order of October 4, 2007, did not end the litigation on the

merits. Instead, it invited Stevens to show cause why her case against the Social Security

Administration should begin. The order notified Stevens of a potential future outcome; it

did not constitute a final judgment. Accordingly, the October 4, 2007 order was not an

immediately appealable final order for the purposes of 28 U.S.C. § 1291.

       The jurisdictional analysis remains incomplete, however, because the District

Court dismissed Stevens’s complaint after Stevens submitted her notice of appeal (and



                                              3
one day before her notice of appeal was docketed). In Cape May Greene, Inc. v. Warren,

(3d Cir. 1983), we “held that a premature notice of appeal, filed after

disposition of some of the claims before a district court, but before entry of final

judgment, will ripen upon the court’s disposal of the remaining claims.” ADAPT of

Phila. v. Phila. Hous. Auth., 

, 361-62 (3d Cir. 2006) (summarizing Cape

May Greene). However, as no claims had been disposed of in the District Court when

Stevens filed her notice of appeal, her case is factually distinct from the paradigm Cape

May Greene case. See also, e.g., Presinzano v. Hoffmann-LaRoche, Inc., 

(3d Cir. 1984). Instead, the order to show cause is like the discovery or similar

interlocutory orders, such as sanctions orders, to which the Cape May Greene rule does

not apply. See ADAPT of 

. As in ADAPT of Phila., in this case 2

“the assertion of appellate jurisdiction . . . would do more than overcome a mere

technicality – it would invite the very piecemeal litigation discouraged by 28 U.S.C.

§ 

.

       In short, we lack appellate jurisdiction over Stevens’s appeal and dismiss it

accordingly.




   2
    The outcome in this case does not reflect any change in our liberal construction of
Rule 3 of the Federal Rules of Appellate Procedure. See Pacitti v. Macy’s, 

,
776 (3d Cir. 1999). However, we cannot conclude that a litigant who clearly designated
an order entered by the District Court intended to appeal an order that did not exist at the
time she prepared and mailed her notice of appeal.

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