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777 F2d 1324 Gleason v. Secretary of Health and Human Services

777 F.2d 1324

11 Soc.Sec.Rep.Ser. 318, Unempl.Ins.Rep. CCH 16,511
Helen M. GLEASON, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Appellee.

No. 85-5097.

United States Court of Appeals,
Eighth Circuit.

Nov. 19, 1985.

David A. Stofferahn, Minneapolis, Minn., for appellant.

Mimi H. Leahy, Chicago, Ill., for appellee.

Before HEANEY, Circuit Judge, and BRIGHT, Senior Circuit Judge, and BOWMAN, Circuit Judge.

ORDER

1

This appeal arose from an action commenced in the United States District Court for the District of Minnesota seeking review of the Secretary's denial of Helen M. Gleason's claim for social security benefits. The case was assigned to Judge Donald D. Alsop, who referred it to Magistrate Brian P. Short. Magistrate Short recommended that the court reverse the Secretary's decision and remand the matter to the Secretary for a determination of the amount of benefits owed. Judge Alsop issued an order, following the magistrate's recommendation. Subsequently, Gleason petitioned for $1,332.82 in attorneys' fees, which represented twenty-five percent of the past-due benefits Gleason was awarded. Magistrate Short issued an order granting attorneys' fees, but reducing the amount to $821.25. Gleason appealed from this order.

2

A magistrate's decision is final and directly appealable to this Court if issued under the authority of 28 U.S.C. Sec. 636(c). If, however, the decision is issued pursuant to section 636(b), initial review rests with the district court. Glover v. Alabama Bd. of Corrections, 660 F.2d 120, 121-22 (5th Cir.1981). Section 636(c) requires a clear and unambiguous statement in the record of both parties' consent to the magistrate's jurisdiction. See 28 U.S.C. Sec. 636(c)(1); Ambrose v. Welch, 729 F.2d 1084, 1085 (6th Cir.1984); Glover, 660 F.2d at 123-24. No such statement is contained in this record.

3

We therefore dismiss the appeal for lack of jurisdiction. This dismissal is without prejudice to the filing of a notice of appeal from any final, appealable order entered in this cause by the district court.