IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20657 Summary Calendar

MARTIN LEAL,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CV-139 -------------------- January 7, 2003

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Martin Leal has filed a notice of appeal, purportedly from

the district court’s summary judgment in favor of the

Commissioner on his social security claim. Leal’s notice of

appeal was not filed within 60 days of that judgment, and his

postjudgment motion did not stay the time for filing a notice of

appeal. See FED. R. APP. P. 4(a)(1)(B), (a)(4)(A)(iv); FED.

R. CIV. P. 26(a). However, Leal’s notice of appeal is timely as

to the denial of his postjudgment motion, which is construed as a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-20657 -2-

motion arising under FED. R. CIV. P. 60(b). See Harcon Barge Co.

v. D & G Boat Rentals, Inc.,

(5th Cir. 1986)

(en banc).

Leal asserts that the district court erred in denying relief

on his social security claims. However, Leal did not challenge

the court’s ruling on the merits of his claims in his

postjudgment motion. Consequently, he cannot challenge them on

appeal. See Aucoin v. K-Mart Apparel Fashion Corp.,

(5th Cir. 1991).

Leal contends that the district court erred in ordering the

parties to file motions for summary judgment. Because the court

considered evidence outside the pleadings, summary judgment was

proper. See Washington v. Allstate Ins. Co.,

(5th Cir. 1990); FED. R. CIV. P. 56(c). The order requiring the

parties to file such motions was within the district court’s

inherent power to control its docket. See Marinechance Shipping,

Ltd. v. Sebastian,

(5th Cir. 1998).

Leal also asserts that the district court improperly

referred the case to the magistrate judge without obtaining his

consent. As the magistrate judge did not perform the final

adjudication of the case, referral was proper. See

(b)(1)(B), (c)(1).

Leal has not established that the district court abused its

discretion in denying his FED. R. CIV. P. 60(b) motion. See Seven No. 02-20657 -3-

Elves, Inc. v. Eskenazi,

(5th Cir. 1981).

Consequently, the judgment of the district court is AFFIRMED.

Leal has moved for oral argument. This motion is DENIED.