IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31291

Summary Calendar

CHRISTOPHER GEORGE TAYLOR, 

 Plaintiff - Appellant

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant - Appellee

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:12-CV-1756

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Christopher Taylor sought judicial review of the Social Security 

Administration’s denial of his application for disability benefits. A magistrate 

judge recommended affirming the agency decision, and the district court 

adopted that recommendation. Taylor contends that the district court’s ruling 

was premature because the magistrate’s report was mailed to him three days 

 

* 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

June 11, 2015

Lyle W. Cayce

Clerk

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late and stated that he would have fourteen business days, rather than the 

normal fourteen calendar days, to file an objection. But Taylor’s objections 

would have been untimely by 79 days even if the district court had known 

about the late mailing and used business days to determine the deadline. We 

therefore find no due process violation that would render the district court’s 

judgement void.

Taylor filed this case in response to an administrative denial of disability 

benefits under Titles II and XVI of the Social Security Act. The district court 

referred the case to a magistrate judge. On April 28, 2014, the magistrate 

judge issued a report and recommendation (R&R) that recommended

upholding the denial of benefits. The R&R warned:

A PARTY’S FAILURE TO FILE WRITTEN OBJECTIONS TO 

THE PROPOSED FINDINGS, CONCLUSIONS AND 

RECOMMENDATIONS CONTAINED HIS REPORT WITHIN 

fourteen(14) BUSINESS DAYS FROM THE DATE OF ITS 

SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON 

THE GROUND OF PLAIN ERROR, FROM ATTACKING ON 

APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL 

FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE 

DISTRICT JUDGE.

ROA 1004. On May 15, 2014, having received no objections, the district court 

adopted the R&R.

Taylor did not file any objections to the R&R until almost three months 

later, on August 8, 2014. That same day, he also filed a motion to vacate the 

district court’s judgment as based on either a clerical mistake or void pursuant 

to Federal Rules of Civil Procedure 60(b)(1) and (b)(4). Taylor claims that the 

R&R was not mailed until May 1, 2014, so that is the date on which the 

fourteen day clock should have started running.1 See 28 U.S.C. § 636(b); Fed. 

 

1 The district court accepted Taylor’s factual allegations as true, and we will do the 

same because it does not affect the disposition of this appeal.

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R. Civ. P. 5(b)(2)(C). Because the R&R specified the district court’s ruling could 

come after 14 “business days,” Taylor contended that he should have had until 

at least May 21, 2014 to file his objections. 

The district court denied Taylor’s motions, concluding that the judgment 

was not void and relief was unwarranted because of the lengthy gap between 

the judgment and his objections. In doing so, it noted that “[t]his court 

routinely grants reasonable extensions of time in which to file objections and 

this case is no exception. However, we find that the delay evident in the record 

is beyond what may be considered reasonable, particularly since no extension 

is sought.” ROA 1062. Taylor appeals the denial of his Rule 60(b)(4) motion.

Rule 60(b)(4) permits a party to seek relief from a final judgment that is 

void. See N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 142–43 (5th Cir. 1996); see 

generally 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 2862 (3d ed. 2015) (summarizing void judgments under Rule 

60(b)(4)). Declaring a final judgment void is an “extraordinary remedy.” See 

Carter v. Fenner, 136 F.3d 1000, 1007 (5th Cir. 1998). A “judgment ‘is void 

only if the court that rendered it lacked jurisdiction of the subject matter, or of 

the parties, or if it acted in a manner inconsistent with due process of law.’” 

Brown, 84 F.3d at 143 (quoting Williams v. New Orleans Pub. Serv., Inc., 728 

F.2d 730, 735 (5th Cir. 1984)). Taylor does not dispute the district court’s 

jurisdiction, but contends that the district court violated his due process rights

when it adopted the magistrate judge’s recommendation before the time had 

elapsed for filing objections.

Taylor has identified an inconsistency between the practices of the 

magistrate judge and district court. Whereas the magistrate judge set forth

the deadline in business days, the district court apparently counted in calendar 

days as the statute permits. 28 U.S.C. § 636; Fed. R. Civ. P. 6(a). This 

disconnect could result in a situation in which a party files an objection that is 

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timely under the magistrate judge’s warning but late under the statute’s 

calendar-day approach that the district court used.2

But that is not the situation in this case, so there is no basis for finding 

that the judgment is void. For a judgment to be void, not only must the

procedural deviation rise to the level of a “fundamental infirmity,” but the 

resulting judgment must also be “affected by” that infirmity. See United 

Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010); cf. Kreimerman 

v. Casa Veerkamp SA de CV, 22 F.3d 634, 646–47 (5th Cir. 1994) (observing

that premature adoption of a report and recommendation is usually subject to 

harmless error review). Even if the district court had waited the extra six days 

Taylor contends it should have, it would not have received any objections from 

Taylor to consider. Compare Brown, 84 F.3d at 143 (vacating a judgment 

under Rule 60(b)(4) because “[w]ithout notice of an impending grant of 

summary judgment, a defendant has no opportunity to be heard”); Collins v. 

Stalder, 335 F. App’x 450, 453 (5th Cir. 2009) (reversing a judgment because 

the defendant was never served with the report and recommendation prior to 

the district court adopting it). Because Taylor waited nearly three months to 

file his objections, any error in adopting the recommendation six days early did 

not “affect[]” the judgment. See Espinosa, 559 U.S. at 270. Moreover, Taylor 

failed to make any contact with the court, which could have included pointing 

out the late mailing or requesting an extension, during those six days or even 

shortly thereafter. As the district court pointed out, doing so would have likely

resolved the timeliness issue and allowed for consideration of the merits of 

Taylor’s objections. See, e.g., Younce v. Barnhart, 98 F. App’x 305, 306 (5th Cir. 

2004) (pointing out that a district court may consider late-filed objections); 

 

2 For example, even if the R&R was mailed the same day it issued (April 28, 2014), 

the district court still would have adopted it after only 13 business days.

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Kreimerman, 22 F.3d at 646–47 (5th Cir. 1994) (pointing out that motions for 

reconsideration protect the litigant from hasty adoption of a recommendation).

For these reasons, the district court’s judgment is not void and is 

AFFIRMED.

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