*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 18, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10406

Summary Calendar

ISMAEL LOREDO,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER

OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court for

the Northern District of Texas

(USDC No. 1:04-CV-0052-C)

_________________________________________________________

_________________________________________________________

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

This appeal arises from a final decision of the Commissioner denying Loredo’s

claim for disability insurance (DIB) and supplemental security income (SSI) benefits
2

under Titles II and XVI of the Social Security Act, (42 U.S.C. § 401 et seq.). We dismiss

Loredo’s appeal for the following reasons:

1. Loredo has failed to present a sufficient basis to confer subject matter

jurisdiction on this court. Loredo originally brought this action in federal

district court pursuant to 42 U.S.C. § 405(g), for review of the

Commissioner’s final decision denying DIB and SSI. We typically have

jurisdiction to review a judgment of the district court in such cases pursuant

to 28 U.S.C. § 1291. 

2. In this case, however, Loredo is not appealing the final judgment of the

district court, citing no substantive error in the decision of that court, nor

any specific error on the part of the magistrate or the ALJ. Rather, Loredo

seeks to bar application of the rule set forth in Douglass v. United Services

Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), which limits review of an

unobjected-to report and recommendation to plain error, by complaining

about the district court’s Electronic Case Filing (ECF) System, and

asserting that he did not receive adequate notice of the magistrate’s report

and recommendation and thus was unable to assert timely objections

thereto. The only relief Loredo requests from this court is remand to the

district court for an opportunity to lodge such objections.

3. Loredo’s contention that he was not properly served by the ECF system was

not raised in the district court. Loredo failed to take advantage of the
1 Loredo could have, for example, filed a Motion to Alter or Amend Judgment,

asking the court to address the question of whether or not it was proper to serve notice of

the report and recommendation via electronic service. See FED. R. CIV. P. 59(e). Such a

motion could have been filed within ten days after entry of the March 28, 2006 judgment

as required by the rule because Loredo’s notice of appeal, filed April 7, 2006, was filed

within this period. Loredo also could have asked the district court to exercise its

discretion to consider late-filed objections. See Rodriguez v. Bowen, 857 F.2d 275, 276-

77 (5th Cir. 1988) (noting that the district court’s “allow[ing] the filing of [a petitioner’s]

objection after the ten day period” was an exercise of its discretion). 

2 Both the district court’s ECF procedures manual, by which registered users

agree to be bound, and its ECF attorney/user registration form state that ECF registration

“constitutes consent to the Clerk of Court to transmit notice of entries of judgments and

orders . . . by electronic transmission,” and that the registered user “agrees that the emailing of the ‘“Notice of Electronic Filing’” by ECF constitutes service of the filed

document on that registered user . . . .” Rule 5(b)(2)(D) of the Federal Rules of Civil

Procedure provides that service is made by “[d]elivering a copy by any other means,

including electronic means, consented to in writing by the person served. Service by

electronic means is complete on transmission.”

3

procedural mechanisms available to alert the district court to his complaints

and thus gave the court no occasion to grant or deny Loredo the opportunity

to present his objections to the report and recommendation.1 Accordingly,

there is no decision by the district court on this issue for us to review.

4. We note that, even if we were to find subject matter jurisdiction over this

appeal, Loredo’s claim is without merit. Loredo consented to electronic

service by virtue of his counsel’s signed registration as an ECF user and the

district court’s standing order designating this case for enrollment in the

ECF system.2 Review of the record reflects that, contrary to his assertion,

Loredo was properly served electronically with the magistrate’s report and
4

recommendation via email to his counsel.

DISMISSED.