FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 18, 2020 _________________________________ Christopher M. Wolpert Clerk of Court EDWARD G. HUNTER,
Plaintiff - Appellant,
v. No. 19-4034 (D.C. No. 1:17-CV-00060-JNP) HCA; MOUNTAINSTAR (D. Utah) HEALTHCARE, aka Mountainstar Health; COLUMBIA OGDEN REGIONAL MEDICAL CENTER, dba Ogden Regional Hospital; MARK ADAMS, CEO, in official and individual capacity; BRIAN LINES, COO, in official and individual capacity; MINDY BOEHM, Dr, in official and individual capacity; ED EHRENBERGER, in official and individual capacity; CARLA TAYLOR, in official and individual capacity; STEVE KIER, in official and individual capacity; VICKY MCCALL, in official and individual capacity; DANN BYCK, in official and individual capacity; KEITH HANCETT, in official and individual capacity; JEFF STEPHENS, in official and individual capacity; YASMEEN SIMONIAN, in official and individual capacity; JOHN HEMMERSMEIER, in official and individual capacity; DON CAZEL, in official and individual capacity; PATRICK WILLIS, in official and individual capacity; JOHN DIEMEL, in official and individual capacity; DANIELLE IHLER, in official and individual capacity,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HOLMES, BACHARACH, and EID, Circuit Judges. _________________________________
Edward G. Hunter filed an action against a hospital and related defendants in
which he claimed that defendants’ actions wrongfully contributed to the termination
of his employment and other injuries. Because Hunter failed to object to the
magistrate judge’s recommendation to grant summary judgment in favor of
defendants on all of his claims, he waived his right to appellate review. Accordingly,
we dismiss his appeal.
I. Background
Hunter was employed by Utah Imaging Associates (“UIA”) as an
interventional radiologist physician assistant. He had privileges to perform medical
procedures at Ogden Regional Medical Center (“ORMC”). Hunter experienced
serious health conditions and personal problems that spilled over into his work. He
claimed that ORMC improperly responded to his health, conduct, and performance
issues, which contributed to the loss of his medical privileges at ORMC, the
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 2 termination of his employment with UIA, and the loss of his license with the State of
Utah.
In response to defendants’ summary judgment motion, Hunter argued there
were disputed fact issues regarding his breach-of-contract claims. He also sought
leave to amend his claim under the Americans with Disabilities Act (“ADA”). A
magistrate judge issued a report and recommendation (“R&R”) recommending that
the district court deny, as futile, Hunter’s request to amend his ADA claim and grant
summary judgment in favor of defendants. The R&R advised: “Within fourteen (14)
days of being served with a copy, any party may serve and file written objections.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure to object may constitute a
waiver of objections upon subsequent review.” Aplt. App. at 277. Hunter did not
file objections to the R&R. The district court adopted the R&R in full, granted the
summary judgment motion, and entered judgment for defendants on all of Hunter’s
claims.
Hunter appealed. This court issued an order to show cause why he had not
waived his right to appellate review by failing to object to the R&R. After Hunter
filed a response, the issue was referred to this panel for decision.
II. Discussion
This court has “adopted a firm waiver rule that provides that the failure to
make timely objections to the magistrate[ judge’s] findings or recommendations
waives appellate review of both factual and legal questions.” United States v. One
Parcel of Real Prop., 73 F.3d 1057, 1059 (10th Cir. 1996) (internal quotation marks
3 omitted). This rule “advance[s] the policies behind the Magistrate’s Act,” including
“enabl[ing] the district judge to focus attention on those issues—factual and legal—
that are at the heart of the parties’ dispute and giv[ing] the district court an
opportunity to correct any errors immediately.” Id. (citation and internal quotation
marks omitted). The firm waiver rule promotes the efficient use of judicial resources
based upon “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.” Id. at 1060
(brackets and internal quotation marks omitted).
We have recognized two exceptions to the firm waiver rule. We do not apply
the rule “when (1) a pro se litigant has not been informed of the time period for
objecting and the consequences of failing to object, or when (2) the interests of
justice require review.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir.
2005) (internal quotation marks omitted). The first exception does not apply here
because Hunter was represented by counsel in the district court. See Allman v.
Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016) (holding the first exception was
inapplicable because the appellant was represented by counsel); Key Energy Res. Inc.
v. Merrill (In re Key Energy Res. Inc.), 230 F.3d 1197, 1200 (10th Cir. 2000) (“[T]he
level of notice required for pro se litigants is not pertinent [where] appellant . . . is
represented by counsel.” (citation omitted)). And the interests-of-justice exception
applies to a counseled party “only in the rare circumstance in which a represented
party did not receive a copy of the magistrate[ judge’s] R & R.” Vega v. Suthers,
195 F.3d 573, 580 (10th Cir. 1999); see also In re Key Energy Res., 230 F.3d at 1200
4 (“[I]n counseled, civil, nonhabeas cases, the merits of the underlying case should not
be considered in determining whether the interests of justice exception has been
met. . . . [D]etermination of the interests of justice exception should focus instead on
the facts that purport to excuse the lack or untimeliness of the filing of objections.”).
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 18, 2020 _________________________________ Christopher M. Wolpert Clerk of Court EDWARD G. HUNTER,
Plaintiff - Appellant,
v. No. 19-4034 (D.C. No. 1:17-CV-00060-JNP) HCA; MOUNTAINSTAR (D. Utah) HEALTHCARE, aka Mountainstar Health; COLUMBIA OGDEN REGIONAL MEDICAL CENTER, dba Ogden Regional Hospital; MARK ADAMS, CEO, in official and individual capacity; BRIAN LINES, COO, in official and individual capacity; MINDY BOEHM, Dr, in official and individual capacity; ED EHRENBERGER, in official and individual capacity; CARLA TAYLOR, in official and individual capacity; STEVE KIER, in official and individual capacity; VICKY MCCALL, in official and individual capacity; DANN BYCK, in official and individual capacity; KEITH HANCETT, in official and individual capacity; JEFF STEPHENS, in official and individual capacity; YASMEEN SIMONIAN, in official and individual capacity; JOHN HEMMERSMEIER, in official and individual capacity; DON CAZEL, in official and individual capacity; PATRICK WILLIS, in official and individual capacity; JOHN DIEMEL, in official and individual capacity; DANIELLE IHLER, in official and individual capacity,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HOLMES, BACHARACH, and EID, Circuit Judges. _________________________________
Edward G. Hunter filed an action against a hospital and related defendants in
which he claimed that defendants’ actions wrongfully contributed to the termination
of his employment and other injuries. Because Hunter failed to object to the
magistrate judge’s recommendation to grant summary judgment in favor of
defendants on all of his claims, he waived his right to appellate review. Accordingly,
we dismiss his appeal.
I. Background
Hunter was employed by Utah Imaging Associates (“UIA”) as an
interventional radiologist physician assistant. He had privileges to perform medical
procedures at Ogden Regional Medical Center (“ORMC”). Hunter experienced
serious health conditions and personal problems that spilled over into his work. He
claimed that ORMC improperly responded to his health, conduct, and performance
issues, which contributed to the loss of his medical privileges at ORMC, the
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 2 termination of his employment with UIA, and the loss of his license with the State of
Utah.
In response to defendants’ summary judgment motion, Hunter argued there
were disputed fact issues regarding his breach-of-contract claims. He also sought
leave to amend his claim under the Americans with Disabilities Act (“ADA”). A
magistrate judge issued a report and recommendation (“R&R”) recommending that
the district court deny, as futile, Hunter’s request to amend his ADA claim and grant
summary judgment in favor of defendants. The R&R advised: “Within fourteen (14)
days of being served with a copy, any party may serve and file written objections.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure to object may constitute a
waiver of objections upon subsequent review.” Aplt. App. at 277. Hunter did not
file objections to the R&R. The district court adopted the R&R in full, granted the
summary judgment motion, and entered judgment for defendants on all of Hunter’s
claims.
Hunter appealed. This court issued an order to show cause why he had not
waived his right to appellate review by failing to object to the R&R. After Hunter
filed a response, the issue was referred to this panel for decision.
II. Discussion
This court has “adopted a firm waiver rule that provides that the failure to
make timely objections to the magistrate[ judge’s] findings or recommendations
waives appellate review of both factual and legal questions.” United States v. One
Parcel of Real Prop., 73 F.3d 1057, 1059 (10th Cir. 1996) (internal quotation marks
3 omitted). This rule “advance[s] the policies behind the Magistrate’s Act,” including
“enabl[ing] the district judge to focus attention on those issues—factual and legal—
that are at the heart of the parties’ dispute and giv[ing] the district court an
opportunity to correct any errors immediately.” Id. (citation and internal quotation
marks omitted). The firm waiver rule promotes the efficient use of judicial resources
based upon “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.” Id. at 1060
(brackets and internal quotation marks omitted).
We have recognized two exceptions to the firm waiver rule. We do not apply
the rule “when (1) a pro se litigant has not been informed of the time period for
objecting and the consequences of failing to object, or when (2) the interests of
justice require review.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir.
2005) (internal quotation marks omitted). The first exception does not apply here
because Hunter was represented by counsel in the district court. See Allman v.
Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016) (holding the first exception was
inapplicable because the appellant was represented by counsel); Key Energy Res. Inc.
v. Merrill (In re Key Energy Res. Inc.), 230 F.3d 1197, 1200 (10th Cir. 2000) (“[T]he
level of notice required for pro se litigants is not pertinent [where] appellant . . . is
represented by counsel.” (citation omitted)). And the interests-of-justice exception
applies to a counseled party “only in the rare circumstance in which a represented
party did not receive a copy of the magistrate[ judge’s] R & R.” Vega v. Suthers,
195 F.3d 573, 580 (10th Cir. 1999); see also In re Key Energy Res., 230 F.3d at 1200
4 (“[I]n counseled, civil, nonhabeas cases, the merits of the underlying case should not
be considered in determining whether the interests of justice exception has been
met. . . . [D]etermination of the interests of justice exception should focus instead on
the facts that purport to excuse the lack or untimeliness of the filing of objections.”).
Hunter does not claim that he failed to receive the R&R. And his contention
that the magistrate judge’s notice was unclear—because it stated only that a failure to
object “may” result in a waiver—is insufficient to support an exception. As noted, a
counseled party cannot avoid application of the firm waiver rule by alleging that the
R&R did not provide sufficient notice of the potential for waiver. See In re Key
Energy Res., 230 F.3d at 1200. In any event, and contrary to Hunter’s suggestion,
our provision of limited exceptions to the firm waiver rule demonstrates that the rule
is not applied in every case.
Hunter also contends that neither the statute governing referral of dispositive
issues to magistrate judges, 28 U.S.C. § 636(b)(1)(B), nor the corresponding
procedural rule, Federal Rule of Civil Procedure 72(b), “contains . . . language to the
effect that a failure to object to [an R&R] on a dispositive motion may or will
constitute a waiver.” Resp. to Ord. to Show Cause at 4. He notes that Rule 72(a),
which addresses magistrate judges’ rulings on nondispositive matters, does include a
waiver provision. This argument ignores the origin of our firm waiver rule, which is
neither statutory nor expressly dictated by a procedural rule. Rather, as explained,
5 we adopted the firm waiver rule to advance the policies behind the Magistrate’s Act. 1
As to Hunter’s contention that the magistrate judge exceeded his statutory authority
by including waiver language in the R&R, the requirement to advise pro se parties of
the consequence of a failure to object is likewise grounded in our case law. See
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991) (requiring magistrate
judges to advise pro se parties in an R&R of the time period for objecting and the
consequent waiver of the right to appeal upon failing to do so). And as a counseled
party, Hunter received more notice regarding the firm waiver rule than our case law
requires.
III. Conclusion
Hunter waived appellate review by failing to file objections to the magistrate
judge’s R&R. The appeal is therefore dismissed. See In re Key Energy Res.,
230 F.3d at 1201; Theede v. U.S. Dep’t of Labor, 172 F.3d 1262, 1264, 1268
(10th Cir. 1999).
Entered for the Court
Allison H. Eid Circuit Judge
1 Moreover, Hunter’s contention appears to confuse this court’s application of the firm waiver rule on appeal with the effect of a failure to object on the district court’s de novo review of an R&R under Rule 72(b)(3). 6