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USCA1 Opinion
December 16, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1111
ANDREW TEMPELMAN,
Plaintiff, Appellant,
v.
UNITED STATES POSTAL SERVICE,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Norman H. Stahl, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Andrew Tempelman on brief pro se.
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Jeffrey R. Howard, United States Attorney, and Gretchen Leah
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Witt, Assistant United States Attorney, on brief for appellee.
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Per Curiam. In September 1988, Andrew Tempelman was a
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candidate for the Republican nomination for United States
Representative for the Second District seat in New Hampshire.
On September 6, 8 and 9 of that year, he delivered a total of
125,817 pieces of campaign literature to the Peterborough
Post Office for third-class mailing to New Hampshire voters.
Contrary to his expectation, most of these flyers were not
delivered prior to September 13, the date of the primary
election. Plaintiff filed a pro se suit against the United
States Postal Service, seeking reimbursement of his mailing
costs and other damages for alleged breach of contract. The
district court, adopting the report and recommendation (R&R)
of a magistrate-judge, dismissed the case for failure to
state a claim,1 and plaintiff now appeals. We affirm.
The R&R, which issued on September 10, 1991, advised
plaintiff that any objections thereto had to be filed by
September 30. Plaintiff filed no such objections, and the
district court dismissed the action on October 30, 1991. A
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1. While the magistrate-judge described the complaint as
"frivolous" and cited to Neitzke v. Williams, 490 U.S. 319
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(1989), it is apparent that his recommendation was not based
on 28 U.S.C. 1915 inasmuch as plaintiff was not proceeding
in forma pauperis. Rather, the recommendation was one for
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sua sponte dismissal under Fed. R. Civ. P. 12(b)(6). See,
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e.g., Street v. Fair, 918 F.2d 269, 272 (1st Cir. 1990) (per
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curiam); Pavilonis v. King, 626 F.2d 1075, 1078 n.6 (1st
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Cir.) (sua sponte dismissal under Rule 12(b)(6) appropriate,
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despite lack of notice to plaintiff, where magistrate's
report had highlighted deficiencies in complaint), cert.
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denied, 449 U.S. 829 (1980).
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docket entry reading "case closed" was entered that same
date, but no separate judgment was issued. On November 7,
plaintiff filed a motion for an extension of time within
which to file his objections. Because the motion failed to
recite the date to which extension was sought, as required by
local rules, a "notice of refusal" was issued informing
plaintiff that the motion would be treated as if never filed.
On December 20, 1991, plaintiff filed a motion to "reopen"
the case, which the district court summarily denied on
December 24. Again, no separate judgment was issued.
Plaintiff filed the instant appeal on January 17, 1992.
We must first determine what is properly before us for
review. Defendant suggests that we have jurisdiction to
review only the December 24 denial of the motion to reopen.
It contends that, because the notice of appeal was filed more
than 60 days after the October 30 order of dismissal, that
order is not reviewable on appeal.2 Yet this argument
overlooks the fact that the October 30 order was never
followed by the entry of judgment on a separate document.
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2. Defendant adds that the motion to reopen did not operate
to toll the time for filing an appeal. That motion,
defendant argues, cannot be viewed as a motion to alter or
amend judgment under Fed. R. Civ. P. 59(e), since it was not
served within ten days of the October 30 order of dismissal;
instead, it must be viewed as one for relief from judgment
under Rule 60(b). Unlike a Rule 59(e) motion, a Rule 60(b)
motion does not toll the time for appeal or affect the
finality of the underlying judgment. See, e.g., Browder v.
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Director, Illinois Dep't of Corrections, 434 U.S. 257, 263
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n.7 (1978); Fed. R. App. P. 4(a)(4).
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See Fed. R. Civ. P. 58. The separate document rule is to be
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applied "without exception to all appealable judgments,"
Fiore v. Washington County Community Mental Health Center,
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960 F.2d 229, 233 (1st Cir. 1992) (en banc), and "should
always be interpreted 'to prevent loss of the right to
appeal, not to facilitate loss.'" Willhauck v. Halpin, 919
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F.2d 788, 792 (1st Cir. 1990) (quoting Bankers Trust Co. v.
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Mallis, 435 U.S. 381, 386 (1978)). Given the lack of a
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separate judgment here, the time for filing a notice of
appeal (or a postjudgment motion) "never commenced running"
following the October 30 order of dismissal. Domegan v.
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Ponte, 972 F.2d 401, 405 (1st Cir. 1992); accord Smith v.
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Massachusetts Department of Correction, 936 F.2d 1390, 1394
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(1st Cir. 1991). That order is therefore properly subject to
review.3
This conclusion, however, avails plaintiff little, given
his failure to object to the magistrate-judge's R&R.
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3. The fact that no separate judgment was entered following
the December 24 denial of the motion to reopen does not
preclude the instant appeal. Neither party objected to the
absence of a separate document below, and neither has been
prejudiced thereby on appeal. Under these circumstances, "we
deem the parties to have waived the requirements of Rule 58."
Smith, 936 F.2d at 1394; accord, e.g., Domegan, 972 F.2d at
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405-06 ("[A] notice of appeal deemed premature due to
noncompliance with the 'separate document' rule does not
deprive the appellate court of subject matter jurisdiction
... and the appeal may proceed in the normal course where the
court of appeals determines that the 'separate document'
requirement was waived by the parties."); Fiore, 960 F.2d at
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236 (discussing circumstances in which waiver will be
inferred).
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"Failure to raise objections to the Report and Recommendation
waives the party's right to review in the district court and
those not preserved by such objection are precluded on
appeal." Davet v. Maccarone, 973 F.2d 22, 31 (1st Cir.
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1992); accord, e.g., Keating v. Secretary of HHS, 848 F.2d
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271, 275 (1st Cir. 1988) (per curiam); Park Motor Mart, Inc.
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v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980) ("a
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party 'may' file objections within [the specified time] or he
may not, as he chooses, but he 'shall' do so if he wishes
further consideration"); see also Thomas v. Arn, 474 U.S.
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140, 142 (1985) (upholding power of court of appeals to
"establish a rule that the failure to file objections to the
magistrate's report waives the right to appeal the district
court's judgment").
The Supreme Court in Thomas noted that, "because the
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rule is a nonjurisdictional waiver provision," a default may
be excused "in the interests of justice." 474 U.S. at 155;
accord, e.g., Valencia v. United States, 923 F.2d 917, 922
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n.5 (1st Cir. 1991). Yet plaintiff has proffered no reasons
here that would justify any such leniency. A party is
typically given ten days from the date of service within
which to file objections, see 28 U.S.C. 636(b)(1); the R&R
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here afforded plaintiff an additional week to do so,
specifying September 30 as the deadline. Plaintiff
acknowledges having received the R&R on September 15--over
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two weeks before that deadline. As required by United States
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v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986) (per
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curiam), the R&R specifically warned that "[f]ailure to file
an objection waives the right to appeal the presiding judge's
decision to the court of appeals." And the two explanations
offered by plaintiff for his failure to file a timely
objection fall well short. First, he states that he was
unable to do so because of his involvement in an arduous
proceeding in Tax Court during the month of September. Yet
we fail to see how this prevented him from at least filing,
prior to the September 30 deadline, a motion seeking
permission to file objections late. See Lyons v. Powell, 838
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F.2d 28, 29 n.1 (1st Cir. 1988) (per curiam). Plaintiff
instead waited until 38 days after the deadline to file a
response (which took the form of a defective motion for
extension). Such conduct hardly justifies invoking an
"interests of justice" exception. Second, plaintiff argues
that, because the magistrate-judge took five months after the
case was filed to issue his R&R, plaintiff should have had an
equivalent amount of time to file his objections. This
contention is commendably creative--but otherwise requires no
response.
In Park Motor, we stated: "The remedy, if any, of a
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dissatisfied party who failed to object should be by way of a
motion for reconsideration disclosing the grounds." 616 F.2d
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at 605. Construed as such, plaintiff's motion to reopen
avails him little; he there addresses the merits of his claim
only in cursory fashion. Having reviewed that motion along
with the other pleadings in the record, we find nothing that
calls into serious question the conclusion below that
plaintiff is claiming the infringement of a legal interest
that does not exist. The magistrate-judge examined various
potential bases for relief--including breach of contract,
estoppel, the Federal Tort Claims Act, and
statutory/regulatory violations--and found each to be
wanting. Plaintiff on appeal disclaims reliance on most of
these theories and rests primarily on a claim of breach of
implied contract. Yet the agency regulations that he cites
impose no enforceable contractual obligations with respect to
the time of delivery of third-class mail.4 See, e.g., Rider
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v. USPS, 862 F.2d 239 (9th Cir. 1988) (affirming dismissal,
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for failure to state a claim, of breach of contract action
brought by political candidate whose third-class mailings
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4. For example, plaintiff relies on 454.31 of the Postal
Operations Manual, which provides:
Experience has demonstrated clearly that if all
mailers of political material are fully informed of
postal requirements--and assured of equal and
proper handling of their mailings to bring about
prompt delivery of campaign material in time for
the elections--there will be no cause for
criticism.
Plaintiff's attempt to extract an enforceable obligation from
this language falls well short.
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were not timely delivered), cert. denied, 490 U.S. 1090
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(1989). We therefore think the district court was justified
in denying the motion to reopen.5
Affirmed.
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5. Defendant maintains that, even if a contract action were
available here, jurisdiction would lie with the Claims Court
rather than the district court since plaintiff is claiming
damages in excess of $10,000. This assertion appears less
clearcut than defendant suggests, see 39 U.S.C. 409(a);
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compare, e.g., Westwood Promotions, Inc. v. USPS, 718 F.
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Supp. 690, 695 (N.D. Ill. 1989), with, e.g., Continental
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Cablevision of St. Paul, Inc. v. USPS, 945 F.2d 1434, 1440
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(8th Cir. 1991); Jackson v. USPS, 799 F.2d 1018, 1022 (5th
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Cir. 1986), and we have no occasion to address it here.
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Document Info
Docket Number： 92-1111
Filed Date： 12/16/1992
Precedential Status： Precedential
Modified Date： 9/21/2015