Tempelman v. US Postal Service

• Court: Court of Appeals for the First Circuit
• Decided: December 16, 1992
• Docket: 92-1111
• Status: Published

Opinion

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December 16, 1992     [NOT FOR PUBLICATION]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.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Norman H. Stahl, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Andrew Tempelman on brief pro se.
            ________________
            Jeffrey  R. Howard,  United  States Attorney,  and  Gretchen  Leah
            __________________                                  ______________
        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
                                      _______     ________
            (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,
            ___________                                              ___
            e.g., Street v. Fair, 918 F.2d 269, 272  (1st Cir. 1990) (per
            ____  ______    ____
            curiam);  Pavilonis v.  King,  626 F.2d  1075, 1078  n.6 (1st
                      _________     ____
            Cir.) (sua sponte dismissal under Rule 12(b)(6)  appropriate,
                   __________
            despite  lack  of  notice to  plaintiff,  where  magistrate's
            report  had  highlighted  deficiencies in  complaint),  cert.
                                                                    _____
            denied, 449 U.S. 829 (1980).
            ______

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.
                                                    ___  ____  _______
            Director, Illinois  Dep't of  Corrections, 434 U.S.  257, 263
            _________________________________________
            n.7 (1978); Fed. R. App. P. 4(a)(4). 

                                         -3-

See Fed. R. Civ. P. 58.  The separate document  rule is to be
            ___

            applied  "without  exception  to  all  appealable judgments,"

            Fiore v.  Washington County Community  Mental Health  Center,
            _____     __________________________________________________

            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
                                                 _________    ______

            F.2d 788, 792 (1st  Cir. 1990) (quoting Bankers Trust  Co. v.
                                                    __________________

            Mallis,  435 U.S.  381, 386  (1978)).   Given the  lack  of a
            ______

            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.
                                                               _______

            Ponte, 972 F.2d  401, 405  (1st Cir. 1992);  accord Smith  v.
            _____                                        ______ _____

            Massachusetts Department  of Correction, 936 F.2d  1390, 1394
            _______________________________________

            (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
            _____                     ______  ____  _______
            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
                                                      _____
            236  (discussing  circumstances  in  which  waiver  will   be
            inferred). 

                                         -4-

"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.
                        _____     _________

            1992); accord,  e.g., Keating v.  Secretary of HHS,  848 F.2d
                   ______   ____  _______     ________________

            271,  275 (1st Cir. 1988) (per curiam); Park Motor Mart, Inc.
                                                    _____________________

            v. Ford  Motor Co.,  616 F.2d 603,  605 (1st  Cir. 1980)  ("a
               _______________

            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.
                                      _________ ______     ___

            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
                                        ______

            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
            ______  ____   ________    ______________

            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
                                       ___

            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
                                                            _____________

            v.  Valencia-Copete,  792 F.2d  4,  6  (1st  Cir. 1986)  (per
                _______________

            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
                                                 ___ _____    ______

            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
                     __________

            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
                                                         ___  ____  _____

            v.  USPS, 862 F.2d 239  (9th Cir. 1988) (affirming dismissal,
                ____

            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
                                           _____________

            (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);
                                                ___
            compare,  e.g., Westwood  Promotions,  Inc. v.  USPS, 718  F.
            _______   ____  ___________________________     ____
            Supp.  690, 695  (N.D.  Ill. 1989),  with, e.g.,  Continental
                                                 ____  ____   ___________
            Cablevision  of St. Paul, Inc.  v. USPS, 945  F.2d 1434, 1440
            ______________________________     ____
            (8th  Cir. 1991); Jackson v.  USPS, 799 F.2d  1018, 1022 (5th
                              _______     ____
            Cir. 1986), and we have no occasion to address it here.

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