Opinion
21-6176
02-16-2022
SUSAN M. SMITH, Plaintiff-Appellant, v. COMMISSIONER, SSA, Defendant-Appellee.
(D.C. No. 5:20-CV-00124-SM) (W.D. Okla.)
Before MORITZ, CARSON, and ROSSMAN, Circuit Judges.
ORDER
In 2019, pro se Appellant Susan M. Smith sought review in the district court of the Commissioner's decision that she was not disabled under the Social Security Act. The district court affirmed. She filed a notice of appeal but later withdrew her appeal. Smith v. Commissioner, SSA, No. 20-6008 (Jan. 29, 2020). In 2020, Ms. Smith filed a second action in the district court seeking review of the Commissioner's decision. The district court adopted a magistrate judge's report and recommendation to dismiss Ms. Smith's action on res-judicata grounds. Ms. Smith appealed. In an April 27, 2021 Order and Judgment, we dismissed the appeal concluding that Ms. Smith waived appellate review because she did not object to the magistrate judge's report and recommendation (firm waiver rule). Smith v. Commissioner, SSA, No. 20-6144 (Apr. 27, 2021). Ms. Smith did not petition for panel rehearing under Fed. R. App. 40. Ms. Smith returned to the district court and filed post-judgment motions which were stricken or denied. On December 29, 2021, Ms. Smith filed a notice of appeal in which she states "Plaintiff challenge[s] the Tenth Circuit Court[']s application of its firm waiver rule as well as the Commissioner's decision denying plaintiff social security benefits." We issued an order to show cause why this appeal should not be dismissed for lack of appellate jurisdiction and Ms. Smith has filed a response.
Upon consideration, we dismiss this appeal for lack of appellate jurisdiction. Ms. Smith cannot file a new appeal in order to challenge our prior decision or to relitigate issues previously resolved. See, e.g., United States v. Mendes, 912 F.2d 434, 437-38 (10th Cir. 1990). "Any other interpretation would undermine the doctrine of finality and lead to endless relitigation of issues previously resolved." Id. at 438. We further note that Ms. Smith has not timely appealed from any post-judgment order entered by the district judge, see 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B); Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1239 (10th Cir. 2006) ("This Court can exercise jurisdiction only if a notice of appeal is timely filed."), and that the post-judgment orders entered by the magistrate judge, but not acted on by the district court, are not appealable, see 28 U.S.C. § 636(b)(1) (magistrate judge authority); Phillips v. Beierwaltes, 466 F.3d 1217, 1222 (10th Cir. 2006).
APPEAL DISMISSED.