Douglass v. United Svcs Auto

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-50007
_____________________
PAUL W. DOUGLASS,
Plaintiff-Appellant,
versus
UNITED SERVICES AUTOMOBILE ASSOCIATION,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
________________________________________________________________
March 28, 1996
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,
DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, DeMOSS, BENAVIDES,
STEWART, PARKER, and DENNIS, Circuit Judges.*
RHESA HAWKINS BARKSDALE, Circuit Judge:
We took this case en banc to reconsider our rule that, if a
party does not timely file objections with the district court to a
magistrate judge's report and recommendation, that party is barred
on appeal to this court, except upon grounds of plain error or
manifest injustice, from challenging the proposed findings of fact
accepted by the district court, provided the party was served by
the magistrate judge with notice of the consequences for the
failure to object. On the other hand, under this rule, a
*
Judge Emilio M. Garza recused himself and did not participate
in this decision.
magistrate judge's unobjected-to proposed legal conclusions
accepted by the district court have not been subjected to this
limited review.
The critical issue in this pro se appeal by Paul W. Douglass
from a summary judgment is our standard of review, in that Douglass
did not file objections to the magistrate judge's report and
recommendation, which the district court accepted. The panel
concluded that our court's rule required de novo review of the
issues of law presented, even though, in essence, those issues are
being raised on appeal for the first time. Douglass v. United
Services Automobile Ass'n, 65 F.3d 452, reh'g granted, 70 F.3d 335
(5th Cir. 1995). The panel recommended rehearing en banc to
reconsider our rule.1
Today, pursuant to our supervisory rule-making power, we
revise our rule in two significant, and one minor, respects. We
hold that failure to object timely to a magistrate judge's report
and recommendation bars a party, except upon grounds of plain error
(our former rule's inclusion in this part of the rule of "or
manifest injustice", if that was an alternative basis for limited
review, has been deleted), from attacking on appeal not only the
proposed factual findings (as under the former rule), but also the
proposed legal conclusions, accepted (the term "or adopted" used in
1
The case was reheard without supplemental briefing or oral
argument.
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our former rule is redundant and, as a minor change, has been
deleted) by the district court, provided that the party has been
served with notice that such consequences will result from a
failure to object ("appellate forfeiture rule for accepted
unobjected-to proposed findings and conclusions").
Douglass challenges the summary judgment dismissing his age
discrimination claims against his former employer, United Services
Automobile Association (USAA). Because the appellate forfeiture
warning he received from the magistrate judge was under the former,
rather than our new, rule, we must apply the former rule to him.
In any event, we AFFIRM.
I.
Douglass, born in 1927, and employed by USAA in February 1980
as a programmer, was placed on probation in December 1991. Shortly
thereafter, in February 1992, he was removed from his position and
placed in a holding unit, where USAA employees who had been removed
from positions for which they were unqualified were given an
opportunity to try to find another position within the company.
While in the holding unit, Douglass was offered a position as an
automated data processing technician, which he accepted that March.
As a result of the change in positions, Douglass' pay was reduced
almost 11%.
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In July 1993, Douglass filed this action against USAA,
claiming that it discriminated against him because of his age when
it removed him from his programmer position and forced him to
accept another position with reduced salary and benefits.2
Douglass alleged that, in 1990, he began receiving poor work
evaluations and was excluded from beneficial work assignments
because of his age.
Pursuant, among other things, to 28 U.S.C. § 636(b)(1), the
action was referred to a magistrate judge. USAA moved for summary
judgment, maintaining that Douglass was removed from his position
because of poor work performance, not age. USAA supported the
motion with affidavits from Douglass' supervisors and personnel
records documenting the deficiencies in his performance and the
reasons for his removal from the programmer position. To his
unsworn response, Douglass attached a copy of an affidavit that he
had submitted to the Equal Employment Opportunity Commission, in
which he expressed his subjective belief that he had been subjected
to age discrimination. And, in his response, Douglass stated that
records necessary to prove his claim were not available to him, and
that he lacked the financial means to purchase copies of
depositions that would assist the court in its ruling. USAA filed
2
Douglass' brief states incorrectly that he asserted a claim
under the Consolidated Omnibus Budget Reconciliation Act (COBRA).
His complaint, however, alleged only violations of the Age
Discrimination in Employment Act. In any event, he does not press
a COBRA claim.
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a reply, attaching deposition excerpts and additional affidavits in
support of its claim that Douglass was removed from his position
because of his performance, not age.
In a September 21, 1994, order, the magistrate judge stated
that Douglass' response was deficient, but that he should be given
another opportunity to provide summary judgment evidence. The
order explained, in great detail, summary judgment procedure and
Douglass' burden in responding to USAA's motion. Douglass was
given until October 14 to respond. In addition, because of
Douglass' pro se status and indigence, the magistrate judge ordered
USAA to produce copies of all depositions to the court for in
camera inspection, in order to determine whether there was any
summary judgment evidence to support Douglass' claim.3 On
September 27, Douglass moved for a continuance, stating that he had
moved to another state, and wanted to retain an attorney.4
Douglass did not respond further to the summary judgment motion.
On October 27, the magistrate judge, pursuant to 28 U.S.C. §
636(b)(1)(B), recommended that summary judgment be granted USAA.
The magistrate judge noted that Douglass had offered only
3
Because the order provided that the depositions would be
returned to USAA after the magistrate judge's inspection, they are
not in the record. But, as noted, USAA submitted deposition
excerpts with its reply to Douglass' response to the summary
judgment motion.
4
The record does not contain a ruling on Douglass' continuance
request.
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conjecture, conclusions and opinions unsupported by fact-specific
summary judgment evidence, and had, therefore, failed to raise a
material fact issue in response to USAA's evidence that he was
removed from his programmer position because of performance, not
age.
Pursuant to our former rule, the magistrate judge warned at
the conclusion of his report and recommendation that "any failure
to file written objections to the proposed findings, conclusions
and recommendation ... within 10 days after being served with a
copy shall bar the aggrieved party from appealing the factual
findings of the Magistrate Judge that are accepted or adopted by
the District Court, except upon grounds of plain error or manifest
injustice". Nevertheless, Douglass did not object. Pursuant to 28
U.S.C. § 636(b)(1), the district court accepted the report and
recommendation and awarded judgment to USAA, noting that it need
not conduct a de novo review of the report and recommendation
because no party had objected.
II.
Douglass contends that the district court erred by granting
summary judgment for USAA, asserting that his age was one of the
reasons for his demotion. For starters, the parties disagree as to
our standard of review. Douglass maintains that, as usual, the
summary judgment should be reviewed de novo. USAA counters that,
consistent with the warning in the magistrate judge's report and
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recommendation, and because Douglass failed to object, he is
precluded from challenging any factual findings by the magistrate
judge that were accepted or adopted by the district court, absent
plain error or manifest injustice. We turn first to our standard
of review.
A.
The standard of review analysis focuses on the two major parts
of our rule that we change today: (1) applying the same
consequences on appeal for a failure to object to a magistrate
judge's proposed legal conclusions accepted by the district court
as we do to the accepted unobjected-to proposed findings of fact;
and (2) having "plain error", rather than "plain error or manifest
injustice", as the only exception to our not reviewing the accepted
unobjected-to proposed findings and conclusions.
These two changes overlap to a great degree, because they both
concern concepts of "waiver" and "forfeiture". For example, as
hereinafter developed, if the failure to object to the magistrate
judge's report and recommendation is considered a waiver, then
there are few, if any, exceptions, not even for plain error, to not
reviewing issues raised for the first time on appeal concerning the
unobjected-to proposed findings and conclusions accepted by the
district court. But, if such failure to object is considered a
forfeiture, as it is by our court, then there is a limited
exception to not reviewing such issues raised on appeal for the
first time; the question becomes how limited that exception should
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be.
Even though the rule, and the exception to the rule, often
touch on the same questions and concerns, such as satisfying the
"interests of justice", Thomas v. Arn, 474 U.S. 140, 155 (1985),
they are analyzed separately here; the resulting duplication is
more than justified in avoiding the confusion, and complexity, that
ensues in approaching the two changes as one.
Before addressing the more narrow question of the standard of
review for a summary judgment, when objections are not made to a
magistrate judge's report and recommendation, we examine, for such
failure, our court's appellate forfeiture rule in general in this
context. There is a six-five split between the circuits as to the
consequences for a failure to so object. (Apparently, the only
circuit that has not adopted a rule is that for the District of
Columbia. See Powell v. United States Bureau of Prisons, 927 F.2d
1239, 1247-48 (D.C. Cir. 1991) (Sentelle, J., dissenting).) Under
our former rule, we tented in the more lenient (minority) camp; we
remain there under our new rule.
Our leniency was reflected in large part by our former rule
not applying the same harsh consequences to unobjected-to proposed
legal conclusions accepted by the district court as we did to
accepted unobjected-to proposed findings of fact. This anomaly,
which caused a great waste of judicial resources, not to mention
inefficiency and added expense, and which was totally at odds with
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the forfeiture/plain error rule applicable in other settings, such
as a failure to object in open court, grew more and more
troublesome in light of the vastly expanded use of magistrate
judges for conducting proceedings and preparing a report and
recommendation for matters such as summary judgment motions (as in
issue here), motions to suppress evidence in criminal cases,
applications for post-trial relief by persons convicted of criminal
offenses, and challenges by prisoners to conditions of confinement.
See 28 U.S.C. § 636(b)(1); Rule 8(b) of the Rules Governing Section
2254 Cases in the United States District Courts and of the Rules
Governing Section 2255 Proceedings in the United States District
Courts.5 This expanded use, and the ever-increasing need for
5
28 U.S.C. § 636(b)(1) provides:
(b)(1) Notwithstanding any provision of
law to the contrary --
(A) a judge may designate a
magistrate to hear and determine any
pretrial matter pending before the
court, except a motion for
injunctive relief, for judgment on
the pleadings, for summary judgment,
to dismiss or quash an indictment or
information made by the defendant,
to suppress evidence in a criminal
case, to dismiss or to permit
maintenance of a class action, to
dismiss for failure to state a claim
upon which relief can be granted,
and to involuntarily dismiss an
action. A judge of the court may
reconsider any pretrial matter under
this subparagraph (A) where it has
been shown that the magistrate's
order is clearly erroneous or
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contrary to law.
(B) a judge may also designate
a magistrate to conduct hearings,
including evidentiary hearings, and
to submit to a judge of the court
proposed findings of fact and
recommendations for the disposition,
by a judge of the court, of any
motion excepted in subparagraph (A),
of applications for posttrial relief
made by individuals convicted of
criminal offenses and of prisoner
petitions challenging conditions of
confinement.
(C) the magistrate shall file
his proposed findings and
recommendations under subparagraph
(B) with the court and a copy shall
forthwith be mailed to all parties.
Within ten days after being served with a
copy, any party may serve and file written
objections to such proposed findings and
recommendations as provided by rules of court.
A judge of the court shall make a de novo
determination of those portions of the report
or specified proposed findings or
recommendations to which objection is made. A
judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the magistrate. The judge may also receive further evidence or
recommit the matter to the magistrate with instructions.
Rule 8(b) of the Rules Governing Section 2254 Cases and of the
Rules Governing Section 2255 Proceedings is identical; it provides:
(b) Function of the magistrate.
(1) When designated to do so
in accordance with 28 U.S.C. §
636(b), a magistrate may conduct
hearings, including evidentiary
hearings, on the petition, and
submit to a judge of the court
proposed findings of fact and
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efficiency and economy, is especially necessary in order to stem
the tide from the veritable flood of prisoner conditions of
confinement complaints.
Our leniency is reflected also by continuing to allow plain
error review under our new rule; our former and new rules are
premised on "forfeiture", not "waiver". Therefore, consistent with
our precedent, discussed infra, we refer to our circuit's rule as
an appellate "forfeiture", rather than a "waiver", rule. As the
Supreme Court emphasized in United States v. Olano, 507 U.S. 725,
113 S. Ct. 1770 (1993), in clarifying plain error review, FED. R.
CRIM. P. 52(b) ("Plain Error") is premised on there being a
recommendations for disposition.
(2) The magistrate shall file
proposed findings and
recommendations with the court and a
copy shall forthwith be mailed to
all parties.
(3) Within ten days after
being served with a copy, any party
may serve and file written
objections to such proposed findings
and recommendations as provided by
rules of court.
(4) A judge of the court shall
make a de novo determination of
those portions of the report or
specified proposed findings or
recommendations to which objection
is made. A judge of the court may
accept, reject, or modify in whole
or in part any findings or
recommendations made by the
magistrate.
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forfeiture, rather than a waiver; otherwise, in general, there
could be no correction of the error on appeal. "Waiver is
different from forfeiture. Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right." Id. at ___, 113
S. Ct. at 1777 (internal quotation marks and citations omitted).
"Mere forfeiture, as opposed to waiver, does not extinguish an
``error'." Id.
This is noted in our post-Olano en banc opinion on plain
error, United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994)
(en banc) ("forfeited legal error, or unobjected-to, unwaived
error, may be reviewable if it qualifies"), cert. denied, ___ U.S.
___, 115 S. Ct. 1266 (1995). Under our former rule, our court
treated the failure to object to a magistrate judge's report and
recommendation as a forfeiture, rather than as a waiver, thereby
permitting, inter alia, plain error review.
Consistent with 28 U.S.C. § 636 (b)(1), FED. R. CIV. P. 72
provides that "a party may serve and file specific, written
objections to the proposed findings and recommendations" of a
magistrate judge within 10 days after being served with a copy of
the report and recommendation, and thereby secure de novo review by
the district court; but, again consistent with § 636(b)(1), it is
silent with respect to the consequences of a party's failure to
object. The advisory committee's note to Rule 72(b) states that,
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"[w]hen no timely objection is filed, the [district] court need
only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation". FED. R. CIV. P.
72(b) advisory committee's note (1983). With respect to the
consequences for appellate review, the note states that "[f]ailure
to make timely objection to the magistrate's report prior to its
adoption by the district judge may constitute a waiver of appellate
review of the district judge's order". Id. (citing United States
v. Walters, 638 F.2d 947 (6th Cir. 1981)).
The Supreme Court has held that the courts of appeals may, in
the exercise of their supervisory rule-making power, deny appellate
review for failure to object to a magistrate judge's report and
recommendation. Thomas v. Arn, 474 U.S. at 155. For such failure,
Thomas condones the denial of appellate review not only of accepted
proposed factual findings, but also of such legal conclusions. Id.
at 150. The Court observed that the Sixth Circuit's decision to
require filing objections to preserve the right to appellate review
both of accepted factual findings and of legal conclusions is
supported by "sound considerations of judicial economy". Id. at
148.
Absent such a rule, any issue before the
magistrate would be a proper subject for
appellate review. This would either force the
court of appeals to consider claims that were
never reviewed by the district court, or force
the district court to review every issue in
every case, no matter how thorough the
magistrate's analysis and even if both parties
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were satisfied with the magistrate's report.
Either result would be an inefficient use of
judicial resources. In short, the same
rationale that prevents a party from raising
an issue before a circuit court of appeals
that was not raised before the district court
applies here.
Id. (internal quotation marks, brackets, and citation omitted;
emphasis added). The Court emphasized, however, that, "because the
rule is a nonjurisdictional waiver provision, the Court of Appeals
may excuse the default in the interests of justice". Id. at 155
(emphasis added).
1.
As noted, and concerning treating equally the failure to
object to accepted proposed findings of fact and conclusions of law
by a magistrate judge, the advisory committee's note to FED. R. CIV.
P. 72(b) cites with approval another Sixth Circuit case, Walters,
which held, without distinguishing between factual findings and
legal conclusions, "that a party shall file objections with the
district court or else waive right to appeal". 638 F.2d at 950.
See also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) ("[a]s
long as a party was properly informed of the consequences of
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failing to object, the party waives subsequent review by the
district court and appeal to this court if it fails to file an
objection").6
The Fourth Circuit, which applies a similar rule both to
factual findings and to legal conclusions, observed that the
purpose of the Federal Magistrates Act, 28 U.S.C. §§ 631-36, would
be defeated if litigants could ignore their right to file
objections with the district court without imperiling their right
to raise those objections in the court of appeals.
Litigants would have no incentive to make
objections at the trial level; in fact they
might even be encouraged to bypass the
district court entirely, even though Congress
has lodged the primary responsibility for
supervision of federal magistrates' functions
with that judicial body. Equally as
troubling, ... [the absence of such a rule]
would impose a serious incongruity on the
6
The Sixth Circuit gave its new rule in Walters "only
prospective effect because rules of procedure should promote, not
defeat the ends of justice". 638 F.2d at 950; see also Kelly v.
Withrow, 25 F.3d 363, 366 (6th Cir.) ("[t]he requirement for
specific objections to a magistrate judge's report is not
jurisdictional and a failure to comply may be excused in the
interest of justice"), cert. denied, ___ U.S. ___, 115 S. Ct 674
(1994). The Sixth Circuit has held also that "a general objection
to a magistrate's report, which fails to specify the issues of
contention, does not satisfy the requirement that an objection be
filed. The objections must be clear enough to enable the district
court to discern those issues that are dispositive and
contentious". Miller v. Currie, 50 F.3d at 380. See also Howard
v. Secretary of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.
1991) ("A general objection to the entirety of the magistrate's
report has the same effects as would a failure to object."). But,
compliance with the rule is excused in the Sixth Circuit when a
district court considers untimely objections. Patterson v.
Mintzes, 717 F.2d 284, 286 (6th Cir. 1983).
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district court's decision making process --
vesting it with the duty to decide issues
based on the magistrate's findings but
depriving it of the opportunity to correct
those findings when the litigant has
identified a possible error.
United States v. Schronce, 727 F.2d 91, 93-94 (4th Cir.), cert.
denied, 467 U.S. 1208 (1984).7
Our court, however, has limited its rule to accepted
7
In addition to the Fourth and Sixth Circuits, four other
circuits (First, Second, Seventh, and Tenth) apply an appellate
waiver rule not only to accepted unobjected-to proposed findings of
fact, but also to such conclusions of law. For the First and
Second Circuits, see Henley Drilling Co. v. McGee, 36 F.3d 143, 150
(1st Cir. 1994); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d
603, 605 (1st Cir. 1980); F.D.I.C. v. Hillcrest Associates, 66 F.3d
566, 569 (2d Cir. 1995); McCarthy v. Manson, 714 F.2d 234, 237 (2d
Cir. 1983). Cf. Small v. Secretary of Health & Human Servs., 892
F.2d 15, 16 (2d Cir. 1989) (describing exception to rule for pro se
litigants unless the magistrate judge's report states that failure
to object will preclude appellate review).
The Seventh Circuit has held that the "[f]ailure to file
objections with the district court to a magistrate's report and
recommendation waives the right to appeal all issues addressed in
the recommendation, both factual and legal"; but a waiver may be
excused in the interests of justice. Lorentzen v. Anderson Pest
Control, 64 F.3d 327, 330 (7th Cir. 1995); see also Video Views,
Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). Cf.
United States v. Robinson, 30 F.3d 774, 777 (7th Cir. 1994)
(refusing to apply appellate waiver rule where government did not
claim prejudice from defendant's filing objections two days late).
The Tenth Circuit holds, similarly, that a failure to object
waives appellate review of accepted unobjected-to proposed findings
of fact and conclusions of law. An exception is made, however, for
"a pro se litigant's failure to object when the magistrate's order
does not apprise the pro se litigant of the consequences of a
failure to object to findings and recommendations". Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991); see also Fero v.
Kerby, 39 F.3d 1462, 1477 (10th Cir. 1994), cert. denied, ___ U.S.
___, 115 S. Ct. 2278 (1995).
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unobjected-to proposed factual findings, as is reflected in the
above quoted warning given Douglass by the magistrate judge. We
first considered the consequences of a failure to object to a
magistrate judge's report and recommendation in United States v.
Lewis, 621 F.2d 1382, 1386 (5th Cir. 1980), cert. denied, 450 U.S.
935 (1981). There, the magistrate judge recommended denial of the
defendants' motion to suppress evidence; one defendant failed to
object to the recommendation, which the district court adopted.
Our court dismissed that defendant's appeal, holding that "[h]is
failure to object is a waiver of his right to appeal the
recommendations contained in the report". Id. at 1386 (emphasis
added).
In Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982)
(en banc), a habeas matter, our court approved the waiver rule of
Lewis, stating that it refused to "sit idly by and observe the
``sandbagging' of district judges when an appellant fails to object
to a magistrate's report in the district court and then undertakes
to raise his objections for the first time" on appeal. Id. at 410.
Nevertheless, our court modified Lewis in two very salient
respects. First, it required that the magistrate judge's report
notify the parties of the consequences for failing to file
objections with the district court. Id. And, second, without
explanation, it held that the failure to object bars a party only
from "attacking on appeal factual findings accepted or adopted by
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the district court except upon grounds of plain error or manifest
injustice". Id. (emphasis added).8
In sum, Nettles replaced the Lewis waiver rule, which applied
to accepted unobjected-to proposed factual findings and legal
conclusions, with a forfeiture rule (review for plain error or
manifest injustice), applicable only to such factual findings.
This was noted, only one month after Nettles was rendered, in
Hardin v. Wainwright, 678 F.2d 589, 591 (5th Cir. 1982) (emphasis
added): "[t]he failure to object no longer waives the right to
appeal but simply limits the scope of appellate review of factual
findings to plain error review; no limitation of the review of
legal conclusions results."9 See Orthopedic & Sports Injury
Clinic v. Wang Laboratories, Inc., 922 F.2d 220, 225 (5th Cir.
1991) (party "is still able to request that [res ipsa loquitur] be
considered on appeal, even if it did not question the magistrate's
findings"); United States v. Carrillo-Morales, 27 F.3d 1054, 1062
8
Nettles was decided in 1982 by Unit B of the former Fifth
Circuit, which became the Eleventh Circuit as of October 1, 1981.
We nevertheless consider all Unit B cases, even those decided after
that date, to be binding precedent. See United States v. Rojas-
Martinez, 968 F.2d 415, 420 n.11 (5th Cir. 1992), cert. denied, 506
U.S. 1039 (1992), and cert. denied, 506 U.S. 1059 (1993). The
Eleventh Circuit continues to adhere to Nettles. See, e.g.,
Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d 1144,
1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th
Cir. 1989).
9
Hardin, like Nettles, was decided by Unit B of the former
Fifth Circuit. See note 8, supra.
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(5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1163 (1995)
("[c]ases following Nettles apply the rule only to a magistrate
judge's findings of fact and not to his conclusions of law").10
As stated, Nettles offered no explanation for changing the
appellate waiver rule announced in Lewis to a forfeiture rule
applicable only to factual findings. Nor can we perceive any valid
reason for distinguishing between proposed factual findings and
proposed legal conclusions when parties fail to object to a
magistrate judge's report and recommendation. In both instances,
the point that should have been stated in an objection is later
made for the first time on appeal. There is no basis for excepting
such accepted unobjected-to proposed legal conclusions from our
longstanding practice of refusing to consider issues raised for the
first time on appeal, absent plain error. See Calverley, 37 F.3d
at 162-64. Pursuant to our new appellate forfeiture rule for
accepted unobjected-to proposed findings and conclusions, we no
longer will make such an exception for such legal conclusions.
The efficacy of our rule applying to legal, as well as factual
10
In addition to the Fifth and Eleventh Circuits, three others
(Third, Eighth, and Ninth) do not apply either an appellate waiver
or an appellate forfeiture rule to accepted unobjected-to proposed
legal conclusions in a magistrate judge's report. See Henderson v.
Carlson, 812 F.2d 874, 878-79 (3d Cir.), cert. denied, 484 U.S. 837
(1987); Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994); Lorin
Corp. v. Goto & Co., Ltd., 700 F.2d 1202, 1207 (8th Cir. 1983);
Flaten v. Secretary of Health & Human Servs., 44 F.3d 1453, 1458
(9th Cir. 1995); Martinez v. Ylst, 951 F.2d 1153, 1156 & n.4 (9th
Cir. 1991).
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issues, is even more so for review of a summary judgment (the
subject of this appeal), because a summary judgment involves only
legal issues, not findings of fact.11 The salutary purposes
underlying summary judgment, and the procedures used in considering
it, see FED. R. CIV. P. 56, are thwarted, if not destroyed, by this
aspect of our former rule. Moreover, in the larger scheme of
11
A summary judgment requires determining not only whether there
are material fact issues, but also, if there are none, whether the
prevailing party is entitled to judgment as a matter of law. FED.
R. CIV. P. 56(c). Both considerations are legal issues (questions
of law); neither is a finding of fact. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986). "As to materiality, the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will
not be counted". Id. at 248. A court having decided which facts
are material, the next "inquiry performed is the threshold inquiry
of determining whether there is the need for a trial -- whether, in
other words, there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party". Id. at 250. Along this line,
it is well to remember that summary judgment is simply another form
of judgment as a matter of law, as reflected in the 1991 amendments
to FED. R. CIV. P. 50. As the advisory committee's note to Rule 50
explains,
[t]he expressed standard makes clear that
action taken under the rule is a performance
of the court's duty to assure enforcement of
the controlling law and is not an intrusion on
any responsibility for factual determinations
conferred on the jury by the Seventh Amendment
or any other provision of federal law.
Because this standard is also used as a
reference point for entry of summary judgment
under 56(a), it serves to link the two related
provisions.
FED. R. CIV. P. 50(a), advisory committee's note (1991).
- 20 -
things, this aspect of our former rule flies in the face of FED. R.
CIV. P. 1 ("to secure the just, speedy, and inexpensive
determination of every action"), and of the growing judicial
recognition of the many benefits of summary judgment. See, e.g.,
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) ("[s]ummary
judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal
Rules as a whole"); see also Little v. Liquid Air Corp., 37 F.3d
1069, 1075-76 (5th Cir. 1994) (en banc).
2.
The second significant change made today deals with the
exception to our new appellate forfeiture rule for accepted
unobjected-to proposed findings and conclusions. As quoted
earlier, Nettles held that the exception was "upon grounds of plain
error or manifest injustice", implying that those two terms have
different meanings, but not explaining the difference, if any. 677
F.2d at 410 (emphasis added). However, as also quoted earlier, in
Hardin, decided only a month after Nettles, our court, after
quoting the preceding language from Nettles, omitted "manifest
injustice", stating that the exception to our former rule was "a
plain error review". 678 F.2d at 591 (emphasis added). See also
Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (citing
Nettles, but reviewing magistrate judge's unobjected-to findings of
fact only "for plain error").
- 21 -
Accordingly, Hardin suggests that Nettles' use of "manifest
injustice" was not intended to imply that it was different from
"plain error". But, because our former rule used the terms "plain
error" and "manifest injustice" in the disjunctive, preceded by
"grounds of", indicating they were alternative bases for limited
review of accepted unobjected-to proposed findings of fact, and
because we can discern possible instances (not in issue here) when
a party might claim "manifest injustice", even though not "plain
error", as a result of a district court accepting a magistrate
judge's report and recommendation, we will examine the two terms to
determine if there is any meaningful substantive difference between
them, as well as whether the latter ("manifest injustice") should
be included in our new appellate forfeiture rule for accepted
unobjected-to proposed findings and conclusions.
Under the recently-clarified plain error standard, appellate
courts have discretion to correct unobjected-to (forfeited) errors
that are plain ("clear" or "obvious") and affect substantial
rights. See Olano, 507 U.S. at ___, 113 S. Ct. at 1777-79
(interpreting FED. R. CRIM. P. 52(b)); Calverley, 37 F.3d at 162-64
(applying FED. R. CRIM. P. 52(b)). In exercising that discretion,
we "should correct a plain forfeited error affecting substantial
rights if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings". Olano, 507 U.S. at
___, 113 S. Ct. at 1779 (internal quotation marks, brackets, and
- 22 -
citation omitted).
Although the Federal Rules of Civil Procedure do not contain
a plain error rule, our court has applied the plain error standard
of FED. R. CRIM. P. 52(b) in civil cases. See Highlands Ins. Co. v.
National Union Fire Ins. Co., 27 F.3d 1027, 1031-32 (5th Cir.
1994), cert. denied, ___ U.S. ___, 115 S. Ct. 903 (1995). Civil
Rule 61 ("Harmless Error") supports that approach. Criminal Rule
52(a) ("Harmless Error"), specifies only the conditions under which
courts "shall" disregard errors ("[a]ny error, defect, irregularity
or variance which does not affect substantial rights shall be
disregarded"), while Criminal Rule 52(b) ("Plain Error") provides
that "[p]lain errors ... may be noticed although they were not
brought to the attention of the court". In contrast, Civil Rule 61
describes both the conditions for which an error should be
disregarded and those for which it should not:
No error in either the admission or the
exclusion of evidence and no error or defect
in any ruling or order or in anything done or
omitted by the court or by any of the parties
is ground for granting a new trial or for
setting aside a verdict or for vacating,
modifying, or otherwise disturbing a judgment
or order, unless refusal to take such action
appears to the court inconsistent with
substantial justice. The court at every stage
of the proceeding must disregard any error or
defect in the proceeding which does not affect
the substantial rights of the parties.
FED. R. CIV. P. 61 (emphasis added). Thus, Civil Rule 61 combines
in a single rule the harmless and plain error rules stated in
- 23 -
Criminal Rule 52(a) and (b).
In short, thanks to Olano, Calverley, and Highlands, our court
has a solid understanding of "plain error". On the other hand, the
other term used to describe the limited review available under our
former rule -- "manifest injustice" -- is a far more elusive
concept. Although the term appears in various contexts, it has not
been defined clearly.
The term is found in FED. R. CIV. P. 16(e), which states that
a pretrial order entered "following a final pretrial conference
shall be modified only to prevent manifest injustice". The
advisory committee's note does not define "manifest injustice". It
does state, however, that the words "to prevent manifest injustice"
appeared in the original rule (adopted in 1937), and "have been
retained" because "[t]hey have the virtue of familiarity and
adequately describe the restraint the trial judge should exercise".
FED. R. CIV. P. 16(e) advisory committee's note.
For other contexts in which "manifest injustice" appears, see,
e.g., T I Federal Credit Union v. Delbonis, 72 F.3d 921, 928 (1st
Cir. 1995) stating that stipulations "should not be rigidly adhered
to when it becomes apparent that it may inflict a manifest
injustice upon one of the contracting parties"); United States v.
Connell, 6 F.3d 27, 31 (1st Cir. 1995) (internal quotation marks
and citation omitted) (finding no abuse of discretion in denial of
belated motion for reconsideration of sentence because court was
- 24 -
"unpersuaded that the decision was clearly erroneous and would work
a manifest injustice"); Maynard v. C.I.A., 986 F.2d 547, 567 (1st
Cir. 1993) (quoting Mack v. Great Atlantic & Pacific Tea Co., 871
F.2d 179, 186 (1st Cir. 1989)) ("Intervention [into the district
court's broad discretion in managing pretrial discovery] would be
warranted ``only upon a clear showing of manifest injustice, that
is, where the lower court's discovery order was plainly wrong and
resulted in substantial prejudice to the aggrieved party.'").
Closer to the discussion at hand, as well as to the related
concept of plain error, a frequent use of the term "manifest
injustice", especially by our court, has been in stating the
exception to the general rule that issues not raised in district
court will not be considered on appeal. See, e.g., Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (brackets, internal
quotation marks, and citations omitted) ("Issues raised for the
first time on appeal are not reviewable by this court unless they
involve purely legal questions and failure to consider them would
result in manifest injustice."); United States v. Sherbak, 950 F.2d
1095, 1101 (5th Cir. 1992) (same); Evans v. Fluor Distribution
Cos., Inc., 799 F.2d 364, 366 (7th Cir. 1986) (citing Stern v.
United States Gypsum, Inc., 547 F.2d 1329, 1333-34 (7th Cir.),
cert. denied, 434 U.S. 975 (1977)) (court has considered in the
past arguments such as appellant's contention that "court has the
discretion to allow legal issues to be raised for the first time on
- 25 -
appeal where not doing so would result in manifest injustice").
For our purposes, we are assisted greatly by our en banc
opinion in Calverley. The vacated panel opinion in Calverley
reviewed Calverley's challenge to the application of the Sentencing
Guidelines, even though made for the first time on appeal, stating
that because he received substantial additional prison time because
of the claimed errors, "the district court's ruling was so
prejudicial to Calverley that our failure to review his claim would
result in manifest injustice". United States v. Calverley, 11 F.3d
505, 508 (5th Cir. 1993). Nevertheless, the panel found no error
and affirmed Calverley's sentence. Id. at 516.
Our en banc opinion in Calverley noted that our court had
previously "abbreviated the plain error inquiry into whether the
issues raised for the first time on appeal are purely legal
questions and failure to consider them would result in manifest
injustice". 37 F.3d at 163 (internal quotation marks and footnote
omitted). But, of great importance, Calverley did not incorporate
the term "manifest injustice" in stating and clarifying our plain
error standard. Id. at 162-64.
With very few exceptions, Nettles and its progeny constitute
the overwhelming majority of cases that seem to treat manifest
injustice and plain error as separate concepts.12 Instead, most
12
See, e.g., National Ass'n of Government Employees v. City
Public Serv. Bd., 40 F.3d 698, 710 (5th Cir. 1994) (emphasis added)
- 26 -
cases, pre- and post-Olano, in our circuit and others, use the term
"manifest injustice" to describe the result of a plain error.13
And, other cases seem to have equated plain error with manifest
injustice. See United States v. Palmer, 956 F.2d 3, 7 (1st Cir.
1992) (where issue raised for first time on appeal, court found
that "this most certainly is not a case of plain error" and that
"this is not the deep, searing kind of ``manifest injustice' that is
required to overcome serious procedural default"); United States v.
Menon, 24 F.3d 550, 555 (3d Cir. 1994) (district court's failure to
instruct jury that statute required intent to deprive government of
money or property "constituted manifest injustice and thus
constituted plain error").
(citing Nettles and finding "no plain error or manifest
injustice"); Edmond v. Collins, 8 F.3d 290, 293 n.7 (5th Cir. 1993)
(emphasis added) (quoting Nettles standard and finding "no clear
error or manifest injustice" in magistrate judge's factual
findings). Cf. United States v. Bullard, 13 F.3d 154, 160 (5th
Cir. 1994) (emphasis added) (finding no "plain error or manifest
injustice" in criminal defendant's sentence).
13
See, e.g., United States v. Keller, 58 F.3d 884, 889 (2d Cir.
1995) ("[p]lain error exists where an error or defect affects a
defendant's substantial rights and results in a manifest
injustice"). United States v. Puig-Infante, 19 F.3d 929, 941 (5th
Cir.) (emphasis added) (pre-Calverley, post-Olano; defines plain
error as "error so obvious and substantial that failure to notice
it would affect the fairness, integrity, or public reputation of
the judicial proceedings and would result in manifest injustice"),
cert. denied, ___ U.S. ___, 115 S. Ct. 180 (1994); Campbell v.
Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1125 & n.13 (5th
Cir. 1992) (emphasis added) (issues raised for first time on appeal
"are only reviewed for plain error -- in other words, whether
failure to consider them results in manifest injustice").
- 27 -
To complete our journey through this morass, we follow our
guiding star -- the emphasis in Thomas v. Arn that, "because the
[supervisory] rule [barring appellate review of accepted
unobjected-to proposed findings and conclusions] is a
nonjurisdictional waiver provision, the Court of Appeals may excuse
the default in the interests of justice". 474 U.S. at 155. A
footnote to that sentence states:
Cf. Fed. Rule Crim. Proc. 52(b) (court may
correct plain error despite failure of party
to object). We need not decide at this time
what standards the courts of appeals must
apply in considering exceptions to their
waiver rules.
Id. at 155 n.15. In deciding whether a "manifest injustice"
exception, in addition to a "plain error" exception, is necessary
to safeguard "the interests of justice", we find it helpful to
consider (and, in large part, revisit) exceptions used in other
circuits. Before doing so, we note, again, that our court has
applied a more lenient forfeiture rule, with limited review for the
failure to object to the report and recommendation, rather than a
harsh waiver rule, as illustrated below.
The First Circuit apparently has not created any exceptions to
its supervisory rule, and has not indicated that it will review
unpreserved claims in civil cases even for plain error. In Park
Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980),
the court held that "a party ``may' file objections within ten days
or he may not, as he chooses, but he ``shall' do so if he wishes
- 28 -
further consideration". Id. at 605. The court stated further
that,
[e]ven if ... an appeal would lie in case of
plain error, we are opposed to the taking of
appeals by one who has never stated his
position to the district court. The remedy,
if any, of a dissatisfied party who failed to
object should be by way of a motion for
reconsideration disclosing the grounds.
Id. But, the court concluded that "there was, in any event, no
plain error". Id. See also Henley Drilling Co. v. McGee, 36 F.3d
143, 150-51 & n.19 (1st Cir. 1994) (claims waived due to failure to
object to magistrate judge's recommendation; case presents no
suitable occasion for adoption of discretionary rule allowing party
to raise unpreserved claim). But see United States v. Wihbey, 75
F.3d 761, 767 (1st Cir. 1996) (concerning suppression hearing,
citing Olano and applying plain error standard).
Likewise, the Second Circuit apparently does not review even
for plain error; but, it has created an "exception for pro se
litigants unless the ``magistrate's report explicitly states that
failure to object to the report within ten (10) days will preclude
appellate review and specifically cites 28 U.S.C. § 636(b)(1) and
Rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure'".
F.D.I.C. v. Hillcrest Associates, 66 F.3d 566, 569 (2d Cir. 1995)
(quoting Small v. Secretary of Health & Human Servs., 892 F.2d 15,
16 (2d Cir. 1989)); see also United States v. Tortora, 30 F.3d 334,
338 (2d Cir. 1994) (refusing to apply appellate waiver rule where
- 29 -
defendant made only a general objection, because neither magistrate
judge nor district court made copy of report available to
defendant); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)
("[w]hen a party fails to object timely to a magistrate's
recommended decision, it waives any right to further judicial
review of that decision"). In addition, if the district court
rejects or substantially modifies the magistrate judge's
recommendation, "the parties may object to all or part of that
judgment and hence preserve specific issues for appeal". Id. at
237 n.2.
The Fourth Circuit has held that, where the magistrate judge's
report and recommendation advised that written objections must be
filed within 10 days, the party who failed to object "waived his
right to appellate review of his fourth amendment claim". United
States v. Schronce, 727 F.2d at 94; see also United States v.
George, 971 F.2d 1113, 1118 n.7 (4th Cir. 1992) ("[a] party waives
the right to appellate review of a magistrate's decision if it
fails to object to the proposed decision before the district
court"). But, a pro se litigant's appeal is not barred unless the
litigant is notified of the consequences of a failure to object.
Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985). The
Fourth Circuit apparently does not review such unobjected-to issues
even for plain error.
As noted, the Sixth Circuit adopted a waiver rule in Walters,
- 30 -
but gave it "only prospective effect because rules of procedure
should promote, not defeat the ends of justice". 638 F.2d at 950.
"The requirement for specific objections to a magistrate judge's
report is not jurisdictional and a failure to comply may be excused
in the interest of justice". Kelly v. Withrow, 25 F.3d 363, 366
(6th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 674 (1994).14
It is unclear whether the Sixth Circuit equates the "interest of
justice" with plain error review. Id.
The Seventh Circuit has "adopt[ed] the rule that failure to
file objections with the district judge waives the right to appeal
all issues, both factual and legal". Video Views, Inc. v. Studio
21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). But, "under certain
circumstances the failure to file objections may be excused because
the rule is not jurisdictional and should not be employed to defeat
the ``ends of justice'". Id. at 540 (citing Walters, 638 F.2d at
949-50). As with the Sixth Circuit, it is not clear whether the
Seventh Circuit equates the "ends of justice" with plain error
review. However, the Seventh Circuit does not apply its appellate
waiver rule where untimely objections are not "egregiously late"
and the opposing party has not been prejudiced. See United States
v. Robinson, 30 F.3d 774, 777 (7th Cir. 1994); Hunger v. Leininger,
14
Compliance is excused also in the Sixth Circuit when a
district court considers untimely objections. Patterson v.
Mintzes, 717 F.2d at 286.
- 31 -
15 F.3d 664, 668 (7th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct.
123 (1994).
The Tenth Circuit holds similarly that a failure to object
waives appellate review of accepted proposed findings of fact and
conclusions of law. Moore v. United States, 950 F.2d 656, 659
(10th Cir. 1991). But, the waiver rule "need not be applied when
the interests of justice so dictate". Id. Also, the rule does not
apply "to a pro se litigant's failure to object when the
magistrate's order does not apprise the pro se litigant of the
consequences of a failure to object to findings and
recommendations". Id.; see also Fero v. Kerby, 39 F.3d 1462, 1477
(10th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 2278
(1995). The Tenth Circuit apparently treats a failure to object as
a waiver, rather than a forfeiture, when the party has been
informed of the consequences of failing to object; therefore, it
does not review waivers for plain error. See id. at 1477-78 (where
pro se litigant not advised of consequences of failing to object,
"it has not been clearly established that [his] response amounted
to an intentional relinquishment of his right to appellate
review").
We consider also the exceptions in those earlier discussed
circuits (Third, Eighth, Ninth and Eleventh) that do not apply
either an appellate waiver or forfeiture rule to accepted
unobjected-to proposed legal conclusions. In Henderson v. Carlson,
- 32 -
812 F.2d 874, 879 (3d Cir.), cert. denied, 484 U.S. 837 (1987), the
Third Circuit addressed only such legal conclusions; it apparently
has not adopted a rule for review of such factual findings, much
less an exception to it.
The Eighth Circuit reviews accepted unobjected-to proposed
factual findings for plain error. See Griffini v. Mitchell, 31
F.3d at 692; Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).
As noted, Griffini cited Nettles, but omitted any reference to
review for "manifest injustice".
The Ninth Circuit, in Martinez v. Ylst, 951 F.2d 1153 (9th
Cir. 1991), stated that, "[w]here a party has failed both to object
to a magistrate's finding and to raise the issue until its reply
brief in the appellate court, with the result that the issue is not
adequately explored, waiver is appropriate unless there are
circumstances suggesting that it will work a substantial inequity".
Id. at 1157. In Flaten v. Secretary of Health & Human Servs., 44
F.3d 1453 (9th Cir. 1995), however, the Ninth Circuit did not refer
to an exception for "substantial inequity", holding that,
"[b]ecause the Secretary did not object to the magistrate judge's
recommendation on the specific grounds that the judge had accepted
a vacated finding as undisputed fact, ... we deem that the
- 33 -
Secretary has waived that argument for purposes of this appeal".
Id. at 1458 (emphasis added).
Finally, as discussed, the Eleventh Circuit applies Nettles,
reviewing accepted unobjected-to proposed factual findings for
"plain error or manifest injustice". See Resolution Trust Corp. v.
Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).
Mindful of Thomas v. Arn's reminder that a failure to object
to a magistrate judge's report and recommendation may be excused in
the "interests of justice", 474 U.S. at 155, having examined
exceptions used by other circuits, and consistent with our treating
the failure to object as a forfeiture, rather than as a waiver, we
hold that such forfeitures will be reviewed only for plain error.
There is no justification for having "manifest injustice" as a
separate standard for reviewing accepted unobjected-to proposed
findings and conclusions. In large part, this is because there is
no meaningful difference between the "affects substantial rights"
and the "fairness, integrity or public reputation of judicial
proceedings" parts of the plain error standard, on the one hand,
and "manifest injustice", on the other; as stated in Calverley, the
latter is simply a shorthand version for these two parts of the
plain error standard. Cf. United States v. Young, 470 U.S. 1, 15
(1985) (internal quotation marks and citations omitted; emphasis
added) (Rule 52(b) authorizes courts to correct only particularly
egregious errors that seriously affect the fairness, integrity, or
- 34 -
public reputation of judicial proceedings; "the plain-error
exception to the contemporaneous-objection rule is to be used
sparingly, solely in those circumstances in which a miscarriage of
justice would otherwise result"). As stated, "manifest injustice",
in the context of a failure to object to a magistrate judge's
report and recommendation, is nothing more than a shorthand way of
describing the result of a plain error that is worthy of correction
under the Olano/Calverley standard. Accordingly, plain error
review, alone, satisfies Thomas v. Arn's concern for the "interests
of justice".
Moreover, as discussed in making the first change to our
former rule, having plain error as the only exception to our new
appellate forfeiture rule for accepted unobjected-to proposed
findings and conclusions makes the rule consistent with the limited
review for plain error accorded a party in non-magistrate judge
report and recommendation scenarios, when that party raises an
issue on appeal for the first time. After all, the failure to
object to a magistrate judge's report and recommendation is really
no different from, for example, the failure of counsel in open
court to object to the admission of evidence. There is a failure
to object, nothing more. Therefore, having plain error review as
the sole exception to not reviewing such failures (forfeitures),
whether in the context of a magistrate judge's report and
recommendation, or otherwise, promotes uniformity and simplicity,
- 35 -
with attendant efficiency and economy for the courts and the
parties; the ends of justice are surely served. See, e.g., FED. R.
CRIM. P. 2 (rules "shall be construed to secure simplicity in
procedure, fairness in administration and the elimination of
unjustifiable expense and delay"); FED. R. CIV. P. 1 (rules "shall
be construed and administered to secure the just, speedy, and
inexpensive determination of every action").15
3.
Therefore, we overrule the appellate forfeiture rule applied
by Nettles and its progeny, and hold that a party's failure to file
written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge's report and recommendation
within 10 days after being served with a copy shall bar that party,
15
We address only a party's failure to object to a magistrate
judge's report and recommendation after that party has been served
with notice of the consequences of such a failure. We do not
consider other hypothetical situations, if any, for which the plain
error standard might not suffice. See Olano, 507 U.S. at ___, 113
S. Ct. at 1777 (court did "not consider the special case where the
error was unclear at the time of trial but becomes clear on appeal
because the applicable law has been clarified"); id. at 1778 (court
did not decide "whether the phrase ``affecting substantial rights'
is always synonymous with ``prejudicial'"); id. (noting that
"[t]here may be a special category of forfeited errors that can be
corrected regardless of their effect on the outcome"). We note,
however, the existence of other avenues of relief. See FED. R. CIV.
P. 60(b) (relief from judgment); Park Motor Mart, Inc. v. Ford
Motor Co., 616 F.2d at 605 ("[t]he remedy, if any, of a
dissatisfied party who failed to object [to a magistrate judge's
report and recommendation] should be by way of a motion for
reconsideration disclosing the grounds"); see also Harper v.
Virginia Dep't of Taxation, 509 U.S. 86 (1993) (addressing
situations in which the law changes during the pendency of a case).
- 36 -
except upon grounds of plain error, from attacking on appeal the
unobjected-to proposed factual findings and legal conclusions
accepted16 by the district court, provided that the party has been
served with notice that such consequences will result from a
failure to object.17
Accordingly, pursuant to our supervisory powers, we direct the
judicial officers in our circuit to revise the warning statements
which have been included in magistrate judges' report and
recommendations since Nettles to reflect these changes in our rule.
But, our prior limited appellate forfeiture rule, as formulated in
Nettles, applies to parties who have not received the new warning
required by the rule we now announce.
We note that it is often the case, especially in pro se cases,
that, even though objections are not filed to all of the magistrate
judge's proposed findings and conclusions, the district judge
engages in de novo review of all of the proposals, because he is
not certain which ones are challenged, or on what basis. For
issues, fact or law, so reviewed de novo, we ordinarily will not
16
Our former rule used the phrase "accepted or adopted"; the
phrase "or adopted" is redundant. The word "adopted" does not
appear in 28 U.S.C. § 636, FED. R. CIV. P. 72, or the Rules
Governing Habeas Corpus Cases Under Section 2254 or Section 2255.
We have deleted it from our rule, because we see no difference
between a district court "accepting" or "adopting" a magistrate
judge's proposed findings of fact and conclusions of law.
17
Nothing in this opinion restricts the district court's
authority to reject a magistrate judge's report and recommendation.
- 37 -
impose our new rule. Restated, we ordinarily will not hold that a
point reviewed de novo by the district judge was not objected to
before it was so reviewed by that judge.
On the other hand, this is not to indicate that the district
court may not properly dispose of the matter in the alternative, by
stating that the objections do not address a particular proposed
finding or conclusion, but that even if they did, that finding or
conclusion is proper (or, similarly, there are no objections, but
in any event, the proposed findings and conclusions are entirely
correct), in which event, we would be free to affirm on the basis
of a lack of proper objection, unless, of course, we found plain
error.
B.
Because Douglass was not warned that failure to object to the
legal conclusions in the magistrate judge's report and
recommendation would restrict appellate review of them to plain
error, he falls within an exception to our new appellate forfeiture
rule for accepted unobjected-to proposed findings and conclusions.
As discussed supra, a summary judgment is premised on legal issues;
there are no findings of fact. Accordingly, consistent with our
regular standard of review for a summary judgment, e.g., Forsyth v.
Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, ___ U.S. ___,
- 38 -
115 S. Ct. 195 (1994), we review the summary judgment in issue de
novo.
Summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law". FED. R. CIV. P.
56(c). If the movant satisfies its initial burden of demonstrating
the absence of a material fact issue, "the non-movant must identify
specific evidence in the summary judgment record demonstrating that
there is a material fact issue concerning the essential elements of
its case for which it will bear the burden of proof at trial".
Forsyth, 19 F.3d at 1533 (citations omitted).
As discussed in note 11, supra, there is no material fact
issue unless "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party". Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In short, conclusory
allegations, speculation, and unsubstantiated assertions are
inadequate to satisfy the nonmovant's burden. Forsyth, 19 F.3d at
1533.
Applying de novo review, the panel concluded that summary
judgment was proper. In sum, as developed in the panel opinion, 65
F.3d at 459, the summary judgment record shows that USAA more than
satisfied its initial summary judgment burden of pointing out the
- 39 -
absence of material fact issues regarding the reason for Douglass'
removal from his programmer position. USAA filed affidavits and
personnel records documenting Douglass' poor work performance and
his need for improvement. In response, Douglass offered nothing to
rebut this evidence, and offered only his personal perceptions and
speculation that USAA's decision to remove him from the position
was based on his age.
It is more than well-settled that an employee's subjective
belief that he suffered an adverse employment action as a result of
discrimination, without more, is not enough to survive a summary
judgment motion, in the face of proof showing an adequate non-
discriminatory reason. See, e.g., Ray v. Tandem Computers, Inc.,
63 F.3d 429, 434 (5th Cir. 1995) ("bald assertions of age
discrimination are inadequate to permit a finding that proscribed
discrimination motivated [defendant's] actions against
[plaintiff]"); Grizzle v. Travelers Health Network, Inc., 14 F.3d
261, 268 (5th Cir. 1994) (employee's "self-serving generalized
testimony stating her subjective belief that discrimination
occurred ... is simply insufficient to support a jury verdict in
plaintiff's favor"); Little v. Republic Refining Co., Ltd., 924
F.2d 93, 96 (5th Cir. 1991) ("[a]n age discrimination plaintiff's
own good faith belief that his age motivated his employer's action
is of little value"); Hornsby v. Conoco, Inc., 777 F.2d 243, 246
(5th Cir. 1985) ("[w]e cannot allow subjective belief to be the
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basis for judicial relief when an adequate nondiscriminatory reason
for the discharge has been presented"); Elliott v. Group Medical &
Surgical Serv., 714 F.2d 556, 566 (5th Cir. 1983) ("generalized
testimony by an employee regarding his subjective belief that his
discharge was the result of age discrimination is insufficient to
make an issue for the jury in the face of proof showing an
adequate, nondiscriminatory reason for his discharge"), cert.
denied, 467 U.S. 1215 (1984).
III.
To assist in ensuring prompt compliance, we state again, under
our supervisory powers, our new appellate forfeiture rule for
accepted unobjected-to proposed findings and conclusions, as well
as the requirement that our new rule be included in a magistrate
judge's report and recommendation:
1. A party's failure to file written
objections to the proposed findings,
conclusions, and recommendation in a
magistrate judge's report and recommendation
within 10 days after being served with a copy
shall bar that party, except upon grounds of
plain error, from attacking on appeal the
unobjected-to proposed factual findings and
legal conclusions accepted by the district
court, provided that the party has been served
with notice that such consequences will result
from a failure to object.
2. The judicial officers in our circuit
are to revise the appellate forfeiture warning
in magistrate judges' report and
recommendations so that it states this new
rule.
For the foregoing reasons, the summary judgment is AFFIRMED,
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and the supervisory powers directives are ISSUED.
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