Francyne J. Cooper v. MICHAEL J. ASTRUE, Commissioner of Social Security

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1634
FRANCYNE J. COOPER,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda Wright Allen,
District Judge. (4:10-cv-00110-AWA-TEM)
Submitted: August 2, 2012 Decided: August 9, 2012
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Dismissed in part and remanded in part by unpublished per curiam
opinion.
Francyne J. Cooper, Appellant Pro Se. Lawrence Richard Leonard,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Francyne J. Cooper seeks to appeal the district
court’s December 22, 2011 order adopting the magistrate judge’s
recommendation and granting summary judgment to the Commissioner
of Social Security in her civil action. The Commissioner has
filed a motion to dismiss the appeal, contending that Cooper’s
May 14, 2012 notice of appeal was untimely filed.
We disagree. On January 4, 2012, Cooper filed, pro
se, a document in the district court that was docketed as a
“Submission to the court by plaintiff (now pro se)” (the
“Submission”). In our view, the best reading of the Submission
construes it as a motion requesting the district court to
reconsider its ruling, pursuant to Fed. R. Civ. P. 60.
Because the district court has not yet ruled on the
pending Submission, Cooper’s May 14 notice of appeal — while not
untimely — is premature. See 28 U.S.C. § 1291 (2006).
We therefore deny the Commissioner’s motion to dismiss
this appeal as untimely and instead dismiss it as premature. We
remand the case to the district court so that it may rule on
Cooper’s pro se Submission, properly construed as a Rule 60
motion to reconsider. Of course, should the district court rule
adversely on Cooper’s pro se Submission, she may at that time
file a timely notice of appeal from the district court’s
judgment entered on December 22, 2011, the order denying her

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Submission, or both. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART
AND REMANDED IN PART

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