Rasdall v. Barnhart , 116 F. App'x 948 ( 2004 )


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  •                                                                                 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    not binding precedent, except under the doctrines of law of the case, res judicata,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.
    -2-
    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”).
    -3-
    As explained above, the Commissioner has waived appellate review. This
    appeal is, accordingly, DISMISSED.
    Entered for the Court
    Carlos F. Lucero
    Circuit Judge
    -4-
    

Document Info

Docket Number: 03-3378

Citation Numbers: 116 F. App'x 948

Judges: Lucero, McKAY, Porfilio

Filed Date: 11/30/2004

Precedential Status: Non-Precedential

Modified Date: 8/3/2023