Rasdall v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 30 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DARRYL RASDALL,
Plaintiff-Appellee,
v. No. 03-3378
(D.C. No. 01-CV-4043-JAR)
JO ANNE B. BARNHART, (D. Kan.)
Commissioner of Social Security,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and PORFILIO , Circuit Judges.
The Commissioner appeals from a district court order reversing the denial
of social security benefits and remanding for further proceedings on the issue of
disability. Despite its inconclusive effect on the ultimate determination, the
district court’s order is a final, appealable disposition. See Baca-Prieto v. Guigni ,
95 F.3d 1006, 1009 (10 th Cir. 1996) (discussing Sullivan v. Finkelstein , 496 U.S.
*
The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10 th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
617, 625 (1990)). As explained below, however, there is a separate procedural
deficiency in the Commissioner’s appeal that necessitates dismissal.
This case was referred at the outset to a magistrate judge, who issued an
extensive report and recommendation in favor of reversal. After the time period
for objections expired without any response from the Commissioner, the district
court adopted the magistrate judge’s recommendation and entered judgment
accordingly. The Commissioner then filed a motion asking the court to consider
her belated objections and set aside the judgment. The district court considered
and rejected the Commissioner’s objections, and let the extant judgment stand.
After an unsuccessful motion to alter or amend the judgment, the Commissioner
commenced this appeal.
“This court has adopted a firm waiver rule which provides that a litigant’s
failure to file timely objections to a magistrate’s report and recommendation
waives appellate review of both the factual and legal determinations.” Key
Energy Res. Inc. v. Merrill (In re Key Energy Res. Inc.) , 230 F.3d 1197,
1199-1200 (10 th Cir. 2000) (quotation omitted). A counseled party may avoid the
waiver only by demonstrating that suspension of the rule is “dictate[d]” by “the
interests of justice.” Id. at 1200 (quotation omitted). This exception is a narrow
one, id. , and no justification for invoking it has been offered or affirmatively
appears from the circumstances of record.
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On appeal, the Commissioner does not even acknowledge the relevant case
law and, thus, has made no effort to argue any basis for avoiding the waiver rule.
When submitting the untimely objections to the district court, the Commissioner
attributed the delay to an “oversight” due to internal “mis-communication.” App.
Vol. 1 at 58. Under our circuit precedent, this generic excuse falls far short of an
adequate justification for suspending the waiver rule. See Key Energy Res. Inc. ,
230 F.3d at 1201 (rejecting counsel’s hospitalization as an adequate excuse and
indicating that exception to waiver rule requires circumstance in which “counsel
was unable to timely file for an extension of time in which to prepare and file his
objections”).
The Commissioner’s appellate brief does note that the district court elected
to consider (and reject) the untimely objections on the merits. But the law is clear
in this circuit that such discretionary largess by the district court does not negate
the appellate -waiver consequences of failing to object in a timely manner to the
magistrate judge’s report and recommendation. See id. at 1201 n.3 (following
Vega v. Suthers , 195 F.3d 573, 580 (10 th Cir. 1999), to hold that district court
review of untimely objection “would not preclude application of the waiver rule
or somehow ‘revive’ [the waived] claims”).
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As explained above, the Commissioner has waived appellate review. This
appeal is, accordingly, DISMISSED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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