UNITED STATES CO URT 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 a lter or amend the order denying remand. Upon our request, the parties filed memorandum briefs addr essing whether the orders

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 2, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - are final and appealable. Because no final, appealable order has been entered, we dismiss this appeal for la ck of jurisdiction. Ms. Mays sought review in the dist rict court of the Social Security Commissioner’s denial of disability bene fits. After the Commissioner filed the administrative record, Ms. Mays f iled a motion to remand for a de novo administrative hearing pursuant to 42 U. S.C. § 405(g). She asserted that the administrative record impr operly included an incorrect, withdrawn page and omitted the corrected, substituted page of her doctor’s report. The magistrate judge denied the moti on to remand, finding the omitted page was not material and woul d not have a reasonable lik elihood of changing the administrative decision. 1 The magistrate judge set a br iefing 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 dist rict court’s final d ecision. 28 U.S.C. § 1291. A final decision “ends the litigatio n 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 ma gistrate judge to conduct all proceedings and to or der entry of final judgment.- 3 - The orders denying the motion to remand and the motion to alter or amend that order did not end the litigation on the meri ts and leave the magistrate judge with nothing to do but execute a judgment. Ra ther, 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 admini strative denial of benefits and has not entered a final judgment. The orders therefore are not final under § 1291. Nor are they appealable under the coll ateral 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 in terlocutory orders may qualify as final under § 1291 if the orders “conclusively de termine the disputed question, resolve an important issue completely separate fro m the merits of th e action, and [are] effectively unreviewable on app eal 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-or der doctrine does not allow a party to appeal an order merely b ecause it creates some inconve nience or disadvantage.”). Because all three of these f actors 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 fa ctor, and we conclude that collateral review is not available because fu ture review is still possible. See id. The magistrate judge’s orders denying the motions to rema nd and to alter and am end are reviewable- 4 - upon entry of final judgment after the magi strate judge reviews the merits of the Commissioner’s denial of social security disabili ty 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 appellat e 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 ju risdiction over a deni al of a motion to remand to state court when co upled with the appeal of a final judgment.” (internal quotation marks omitted)). Thus, we conclude the colla teral 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.