     Case: 14-31291      Document: 00513074970         Page: 1    Date Filed: 06/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-31291                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            June 11, 2015
CHRISTOPHER GEORGE TAYLOR,                                                 Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:12-CV-1756


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Christopher Taylor sought judicial review of the Social Security
Administration’s denial of his application for disability benefits. A magistrate
judge recommended affirming the agency decision, and the district court
adopted that recommendation. Taylor contends that the district court’s ruling
was premature because the magistrate’s report was mailed to him three days


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 14-31291
late and stated that he would have fourteen business days, rather than the
normal fourteen calendar days, to file an objection. But Taylor’s objections
would have been untimely by 79 days even if the district court had known
about the late mailing and used business days to determine the deadline. We
therefore find no due process violation that would render the district court’s
judgement void.
       Taylor filed this case in response to an administrative denial of disability
benefits under Titles II and XVI of the Social Security Act. The district court
referred the case to a magistrate judge. On April 28, 2014, the magistrate
judge issued a report and recommendation (R&R) that recommended
upholding the denial of benefits. The R&R warned:
       A PARTY’S FAILURE TO FILE WRITTEN OBJECTIONS TO
       THE     PROPOSED    FINDINGS, CONCLUSIONS  AND
       RECOMMENDATIONS CONTAINED HIS REPORT WITHIN
       fourteen(14) BUSINESS DAYS FROM THE DATE OF ITS
       SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON
       THE GROUND OF PLAIN ERROR, FROM ATTACKING ON
       APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL
       FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE
       DISTRICT JUDGE.
ROA 1004. On May 15, 2014, having received no objections, the district court
adopted the R&R.
       Taylor did not file any objections to the R&R until almost three months
later, on August 8, 2014. That same day, he also filed a motion to vacate the
district court’s judgment as based on either a clerical mistake or void pursuant
to Federal Rules of Civil Procedure 60(b)(1) and (b)(4). Taylor claims that the
R&R was not mailed until May 1, 2014, so that is the date on which the
fourteen day clock should have started running. 1 See 28 U.S.C. § 636(b); Fed.



       1The district court accepted Taylor’s factual allegations as true, and we will do the
same because it does not affect the disposition of this appeal.
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                                  No. 14-31291
R. Civ. P. 5(b)(2)(C). Because the R&R specified the district court’s ruling could
come after 14 “business days,” Taylor contended that he should have had until
at least May 21, 2014 to file his objections.
      The district court denied Taylor’s motions, concluding that the judgment
was not void and relief was unwarranted because of the lengthy gap between
the judgment and his objections.       In doing so, it noted that “[t]his court
routinely grants reasonable extensions of time in which to file objections and
this case is no exception. However, we find that the delay evident in the record
is beyond what may be considered reasonable, particularly since no extension
is sought.” ROA 1062. Taylor appeals the denial of his Rule 60(b)(4) motion.
      Rule 60(b)(4) permits a party to seek relief from a final judgment that is
void. See N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 142–43 (5th Cir. 1996); see
generally 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2862 (3d ed. 2015) (summarizing void judgments under Rule
60(b)(4)). Declaring a final judgment void is an “extraordinary remedy.” See
Carter v. Fenner, 136 F.3d 1000, 1007 (5th Cir. 1998). A “judgment ‘is void
only if the court that rendered it lacked jurisdiction of the subject matter, or of
the parties, or if it acted in a manner inconsistent with due process of law.’”
Brown, 84 F.3d at 143 (quoting Williams v. New Orleans Pub. Serv., Inc., 728
F.2d 730, 735 (5th Cir. 1984)). Taylor does not dispute the district court’s
jurisdiction, but contends that the district court violated his due process rights
when it adopted the magistrate judge’s recommendation before the time had
elapsed for filing objections.
      Taylor has identified an inconsistency between the practices of the
magistrate judge and district court. Whereas the magistrate judge set forth
the deadline in business days, the district court apparently counted in calendar
days as the statute permits. 28 U.S.C. § 636; Fed. R. Civ. P. 6(a). This
disconnect could result in a situation in which a party files an objection that is
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                                    No. 14-31291
timely under the magistrate judge’s warning but late under the statute’s
calendar-day approach that the district court used. 2
      But that is not the situation in this case, so there is no basis for finding
that the judgment is void. For a judgment to be void, not only must the
procedural deviation rise to the level of a “fundamental infirmity,” but the
resulting judgment must also be “affected by” that infirmity.               See United
Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010); cf. Kreimerman
v. Casa Veerkamp SA de CV, 22 F.3d 634, 646–47 (5th Cir. 1994) (observing
that premature adoption of a report and recommendation is usually subject to
harmless error review). Even if the district court had waited the extra six days
Taylor contends it should have, it would not have received any objections from
Taylor to consider. Compare Brown, 84 F.3d at 143 (vacating a judgment
under Rule 60(b)(4) because “[w]ithout notice of an impending grant of
summary judgment, a defendant has no opportunity to be heard”); Collins v.
Stalder, 335 F. App’x 450, 453 (5th Cir. 2009) (reversing a judgment because
the defendant was never served with the report and recommendation prior to
the district court adopting it). Because Taylor waited nearly three months to
file his objections, any error in adopting the recommendation six days early did
not “affect[]” the judgment. See Espinosa, 559 U.S. at 270. Moreover, Taylor
failed to make any contact with the court, which could have included pointing
out the late mailing or requesting an extension, during those six days or even
shortly thereafter. As the district court pointed out, doing so would have likely
resolved the timeliness issue and allowed for consideration of the merits of
Taylor’s objections. See, e.g., Younce v. Barnhart, 98 F. App’x 305, 306 (5th Cir.
2004) (pointing out that a district court may consider late-filed objections);



      2  For example, even if the R&R was mailed the same day it issued (April 28, 2014),
the district court still would have adopted it after only 13 business days.
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Kreimerman, 22 F.3d at 646–47 (5th Cir. 1994) (pointing out that motions for
reconsideration protect the litigant from hasty adoption of a recommendation).
      For these reasons, the district court’s judgment is not void and is
AFFIRMED.




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