Smith v. Barnhart

1 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50397
Summary Calendar
GARY D. SMITH,
Plaintiff-Appellant,
versus
LARRY G. MASSANARI, ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CV-197-H
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November 28, 2001
Before DUHÉ, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:1
On March 21, 2001, the magistrate judge entered an order
denying a motion for summary judgment filed by Gary D. Smith. The
record contains no other judgment or order disposing of the case.
A federal appellate court is obligated to determine, sua
sponte if necessary, whether it has jurisdiction. See Williams v.
Chater, 87 F.3d 702, 704 (5th Cir. 1996). Generally, a federal
appellate court has jurisdiction over appeals from (1) final
orders, 28 U.S.C. § 1291; (2) orders that are deemed final due to
jurisprudential exception or which have been properly certified as

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final pursuant to Rule 54(b); and (3) interlocutory orders that
fall into specific classes, 28 U.S.C. § 1292(a), or which can be
properly certified for appeal by the district court, 28 U.S.C. §
1292(b). See Askenase v. Livingwell, Inc., 981 F.2d 807, 809-10
(5th Cir. 1993). “A decision is final when it ends the litigation
on the merits and leaves nothing for the court to do but execute
the judgment.” Id. at 810 (internal quotations and citations
omitted).
The “denial of summary judgment is not a final order within
the meaning of 28 U.S.C. § 1291.” Skelton v. Camp, 234 F.3d 292,
295 (5th Cir. 2000). The magistrate judge’s order did not grant
summary judgment for the Commissioner, order that Smith’s complaint
be dismissed, or otherwise “end the litigation on the merits.”
Because of the absence of an appealable order, we are without
jurisdiction.
APPEAL DISMISSED.

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