UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

REBECCA L. MAYS, 

 Plaintiff-Appellant, 

v. 

MICHAEL J. ASTRUE, Commissioner, 

Social Security Administration, 

 Defendant-Appellee. 

No. 11-5103 

(D.C. No. 4:10-CV-00506-FHM) 

(N.D. Okla.)

 

 

ORDER AND JUDGMENT*

 

Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges. 

 

 Rebecca L. Mays appeals from orders denying her motions to remand to the 

Social Security Administration and to alter or amend the order denying remand. 

Upon our request, the parties filed memorandum briefs addressing whether the orders 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 2, 2012

Elisabeth A. Shumaker 

Clerk of Court
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are final and appealable. Because no final, appealable order has been entered, we 

dismiss this appeal for lack of jurisdiction. 

 Ms. Mays sought review in the district court of the Social Security 

Commissioner’s denial of disability benefits. After the Commissioner filed the 

administrative record, Ms. Mays filed a motion to remand for a de novo 

administrative hearing pursuant to 42 U.S.C. § 405(g). She asserted that the 

administrative record improperly included an incorrect, withdrawn page and omitted 

the corrected, substituted page of her doctor’s report. 

 The magistrate judge denied the motion to remand, finding the omitted page 

was not material and would not have a reasonable likelihood of changing the 

administrative decision.1

 The magistrate judge set a briefing schedule. Rather than 

file a brief, Ms. Mays filed a motion to alter or amend. The magistrate judge denied 

the motion. Ms. Mays appealed. 

 We have jurisdiction to review a district court’s final decision. 28 U.S.C. 

§ 1291. A final decision “ends the litigation on the merits and leaves nothing for the 

court to do but execute the judgment.” Riley v. Kennedy, 553 U.S. 406, 419 (2008); 

see Utah v. Norton, 396 F.3d 1281, 1286 (10th Cir. 2005) (“A final judgment is one 

that terminates all matters as to all parties and causes of action.” (internal quotation 

marks omitted)). 

 

1

 Upon the parties’ consent, the case was referred to the magistrate judge to 

conduct all proceedings and to order entry of final judgment. 
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 The orders denying the motion to remand and the motion to alter or amend that 

order did not end the litigation on the merits and leave the magistrate judge with 

nothing to do but execute a judgment. Rather, the magistrate judge set a briefing 

schedule so the case could continue to final judgment. Clearly, the magistrate judge 

has not reviewed the merits of the administrative denial of benefits and has not 

entered a final judgment. The orders therefore are not final under § 1291. 

 Nor are they appealable under the collateral order exception to the final 

judgment rule. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). 

Under that exception, a small number of interlocutory orders may qualify as final 

under § 1291 if the orders “conclusively determine the disputed question, resolve an 

important issue completely separate from the merits of the action, and [are] 

effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. 

Livesay, 437 U.S. 463, 468 (1978); see also United States v. Pickard, 676 F.3d 1214, 

1217 (10th Cir. 2012) (“[T]he collateral-order doctrine does not allow a party to 

appeal an order merely because it creates some inconvenience or disadvantage.”). 

Because all three of these factors must be shown, if one is not met, we need not 

address the other two. Magic Circle Energy 1981-A Drilling Program v. Lindsey 

(In re Magic Circle Energy Corp.), 889 F.2d 950, 954 (10th Cir. 1989). 

 Here, we need only address the third factor, and we conclude that collateral 

review is not available because future review is still possible. See id. The magistrate 

judge’s orders denying the motions to remand and to alter and amend are reviewable 
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upon entry of final judgment after the magistrate judge reviews the merits of the 

Commissioner’s denial of social security disability benefits. See Miami Tribe of 

Okla. v. United States, 656 F.3d 1129, 1137 (10th Cir. 2011) (“Through an appeal of 

a final judgment, a party can obtain appellate review of both the final judgment and 

any interlocutory orders.”); cf. Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 

1076 (10th Cir. 1999) (“This court has jurisdiction over a denial of a motion to 

remand to state court when coupled with the appeal of a final judgment.” (internal 

quotation marks omitted)). Thus, we conclude the collateral order exception does not 

apply to this case.2

 

 Accordingly, we DISMISS this appeal. 

 Entered for the Court 

 Bobby R. Baldock 

 Circuit Judge 

 

2

 Because we lack jurisdiction over this appeal, we need not address Ms. Mays’ 

argument that the allegedly inaccurate record denied her due process.