UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
ROBERT L. THEEDE,
Plaintiff - Appellant,
v. 98-1071 (D. C. No. 97-B-388) UNITED STATES DEPARTMENT (D. Colo.) OF LABOR; DEPARTMENT OF VETERANS AFFAIRS; ROBERT B. REICH, Secretary of Labor; OFFICE OF WORKERS' COMPENSATION PROGRAMS; WILLIAM L. ROBERTS; CLARENCE H. NIXON; WAYNE D. THOMPSON; DEAN R. STORDAHL; AUSMA S. BLUMENTHAL; NEAL C. LAWSON; N. DIXON,
Defendants - Appellees.
ORDER Filed April 13, 1999
Before BRORBY, EBEL and LUCERO, Circuit Judges.
Appellees’ petition for rehearing filed March 3, 1999, is granted.
The Order and Judgment filed February 16, 1999, is hereby recalled and the
mandate was recalled on March 15, 1999. The replacement opinion is attached hereto, and, on the court’s own motion,
it has been ordered published.
Entered for the Court
PATRICK FISHER Clerk of Court
By: Keith Nelson Deputy Clerk
-2- F I L E D United States Court of Appeals Tenth Circuit PUBLISH APR 13 1999 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT
Plaintiff-Appellant, v.
UNITED STATES DEPARTMENT OF LABOR; DEPARTMENT OF VETERANS AFFAIRS; ROBERT B. REICH, Secretary of Labor; OFFICE OF WORKERS’ COMPENSATION No. 98-1071 PROGRAMS; ANDREW THARP; WILLIAM L. ROBERTS; CLARENCE H. NIXON; WAYNE D. THOMPSON; DEAN R. STORDAHL; AUSMA S. BLUMENTHAL; NEAL C. LAWSON; N. DIXON,
Defendants-Appellees.
Appeal from the United States District Court for the District of Colorado (D.C. No. 97-B-388)
Submitted on the briefs: *
Robert L. Theede, Pro Se.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause therefore is ordered submitted without oral argument. Henry L. Solano, United States Attorney and Michael E. Hegarty, Assistant United States Attorney, Denver, Colorado.
EBEL, Circuit Judge.
Robert Theede (“Theede”), formerly a dentist for the Veterans Administration,
appeals from the district court’s order dismissing his claims under the Federal
Employees Compensation Act (“FECA”) and the Federal Tort Claims Act (“FTCA”).
Because Theede failed to timely object to the magistrate’s recommendation to
dismiss his claims, he waived his right to appellate review. Accordingly, we dismiss
his appeal.
Background
Beginning in 1974, Theede worked as a dentist for the Veterans
Administration. In 1983, he started experiencing problems. He was written-up for
insubordination, reassigned to work he considered less desirable, and monitored by
supervisors. As a result of these events, in 1984, Theede filed an EEOC complaint
alleging age discrimination. The following year he filed for disability. Finally, in
1986, Theede was terminated after a medical evaluation found that he was “not
medically fit to carry out the full range of his duties as a dentist.” At that time, he
-2- was informed of his right to apply for disability retirement through the Office of
Personnel Management, which he did.
In 1991, the Department of Labor informed Theede that he was entitled to
benefits under the FECA retroactive to July 1986. Theede immediately elected to
receive such benefits. While the record is not entirely clear on this point, it appears
that Theede continued to receive benefits under FECA until June 1, 1996, when he
received a termination letter stating that “[t]he incidents initially accepted in this
claim are not considered under the [FECA] to have arisen in and out of the course
of the performance of Federal duty.” On June 23, 1996, alleging a barrage of
injustices forced upon him since the early-1980s, Theede filed a “Claim for Relief”
before the Department of Labor seeking $8,600,000. From the record before us, it
is unclear how the Department of Labor responded, but it is safe to assume Theede’s
claim was denied. 1
Thereafter, on February 26, 1997, Theede filed suit in the United States
District Court for the District of Colorado raising claims under FECA, FTCA, the
Age Discrimination and Employment Act (“ADEA”), and Title VII of the Civil
1 According to the magistrate’s recommendation, Theede appealed the June 1, 1996 letter decision, a hearing was held in June 1997, and on August 5, 1997, the Department of Labor affirmed the decision terminating Theede’s benefits, through its Office of Workers’ Compensation Programs. The August 5, 1997 decision informed Theede that he had 90 days from the date of the decision to appeal to the Employees’ Compensation Appeals Board. Theede has presented no evidence that he did so.
-3- Rights Act of 1964 (“Title VII”). On May 13, 1997, the district court dismissed
Theede’s ADEA and Title VII claims as barred by res judicata. On June 24, 1997,
Theede filed an “Amended Complaint” attempting to revive his dismissed ADEA and
Title VII claims. On September 22, 1997, the defendants filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1) & (6) for lack of subject matter
jurisdiction and failure to state a claim upon which relief can be granted. On
October 6, 1997, the district court referred defendants’ motion to dismiss to the
magistrate judge for a recommendation. After continued motion practice and a
hearing, on October 31, 1997, the magistrate judge issued an order for Theede to
show cause why his suit did not violate Rule 11 of the Federal Rules of Civil
Procedure and why “his continued litigation against the Veterans Administration and
its employees is not for the purpose of harassment.” In the order to show cause, the
magistrate noted that Theede “has previously filed lawsuits against the [defendants
named in the instant suit],” and that the “United States Court of Appeals, Ninth
Circuit, has entered six opinions on appeals by Dr. Theede” which possibly preclude
his present action.
On December 2, 1997, the magistrate judge issued his recommendation that
Theede’s Amended Complaint be dismissed and that Theede be barred from filing
any further complaints against the Department of Labor or the individual defendants
unless represented by counsel. Specifically, the recommendation noted that the “law
-4- is well established that the federal court is barred from reviewing decisions under
[FECA],” and “[n]o where in the Amended Complaint does Theede set forth facts or
allegations of a Federal Tort.” The recommendation advised the parties that they
“shall have ten (10) days after service hereof to serve and file written, specific
objections to the findings of fact, conclusions of law, or recommendations of the
Magistrate Judge with the District Judge assigned to the case.” The recommendation
further advised the parties of the consequences of failing to object:
A party’s failure to file such written, specific objections to the findings of fact, conclusions of law and recommendations of the Magistrate Judge as set forth in this document will bar the party from a de novo determination by the District Judge. Additionally, the failure to file written, specific objections to the findings of fact, conclusions of law or recommendations of the United States Magistrate Judge in this document within ten (10) days after being served with a copy will bar appellate review of the findings of fact, conclusions of law or recommendations of the Magistrate Judge.
Neither party objected to the magistrate’s recommendation, and on December
26, 1997, the district judge issued an order granting the defendants’ motion to
dismiss the amended complaint and barring Theede from filing any further
complaints against the named defendants unless represented by counsel. On January
12, 1998, Theede filed a motion for reconsideration, in which he claimed, inter alia,
that he was “unaware” of the magistrate’s December 2, 1997 recommendations, thus
was not permitted to respond. That motion was denied by the district court the same
day. On January 23, 1998, Theede filed an Affidavit of Defective Service of
-5- Document, claiming that he did not receive the magistrate’s recommendation until
January 22, 1998. He noted that service of the recommendation was effectuated by
mailing it to Theede’s street address at the 80202 zip code, when his proper zip code
is 80246. He claimed the errant address resulted in his not receiving the
recommendation, thus he requested an additional 10 days to respond. The district
court struck this document by minute order on January 26, 1998. On February 2,
1998, Theede filed his response to the magistrate’s recommendations, which the
district court struck as untimely. Theede filed his notice of appeal on February 23,
1998.
Because the magistrate’s recommendation was mailed to Theede’s last known
address, he was properly served on December 2, 1997. Any delay in receiving the
magistrate’s recommendation resulted from Theede’s failure to correct or change his
address in a clear and concise way likely to bring it to the court’s attention. Theede
failed to object to the recommendation in a timely manner. Accordingly, he waived
his right to appellate review and we DISMISS.
Waiver
The Department of Labor claims that Theede waived his right to appeal
dismissal of his complaint by failing to object to the magistrate’s recommendation
within ten days. As noted, the magistrate’s recommendation was filed on December
-6- 2, 1997. It contained a provision advising the parties that they “shall have ten (10)
days after service hereof to serve and file written, specific objections to the findings
of fact, conclusions of law, or recommendations of the Magistrate Judge with the
District Judge assigned to the case.” The recommendation further advised the parties
that “failure to file written, specific objections to the findings of fact, conclusions
of law or recommendations of the United States Magistrate Judge in this document
within ten (10) days after being served with a copy will bar appellate review . . . .”
Thus, the recommendation properly advised the parties of the consequences of failing
to timely object. See Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996); Moore
v. United States, 950 F.2d 656, 659 (10th Cir. 1991). Accordingly, we should apply
our “firm waiver rule” if Theede failed “to object to the findings and
recommendations of the magistrate” in a timely manner. See Moore, 950 F.2d at
659.
Theede admits he did not file his objections to the recommendation until
February 2, 1998. While the time between December 2, 1997 until February 2, 1998
is clearly more than the ten days permitted to file objections to the recommendations,
Theede claims his untimeliness should be excused because he “was not served with
a copy of such recommendation of the United States magistrate until January 22,
1998.”
-7- Without doubt, the magistrate’s recommendation keyed waiver of appellate
review to service: “failure to file written, specific objections . . . within ten (10)
days after being served with a copy will bar appellate review.” (emphasis added).
Thus, the first question we must answer is when was Theede served. The
Magistrate’s recommendation mimics the language of Rule 72 of the Federal Rule
of Civil Procedure, which requires objections to be filed “[w]ithin 10 days after
being served with a copy of the magistrate judge’s order.”
Rules 5 and 6 of the Federal Rules of Civil Procedure define “service.” Rule
5(b) states that “[s]ervice upon the attorney or upon a party shall be made by
delivering a copy to the attorney or party or by mailing it to the attorney or party at
the attorney’s or party’s last known address . . . .” (emphasis added). Rule 6
modifies both Rule 5 and Rule 72. First, Rule 6(a) states that “[w]hen the period of
time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and
legal holidays shall be excluded in the computation.” Because Rule 72 permits only
10 days for objections to a magistrate’s recommendation, Rule 6 excludes Saturdays,
Sundays, and legal holidays from that 10 day period. Further, Rule 6(e) states:
“Whenever a party has the right or is required to do some act or take some
proceedings within a prescribed period after the service of a notice or other paper
upon the party and the notice or paper is served upon the party by mail, 3 days shall
be added to the prescribed period.” Thus, because the magistrate’s recommendation
-8- was served on Theede by mail, the period for his response must be enlarged by 3
days.
Service by mail is accomplished, for purposes of Rule 5, when documents are
placed in the hands of the United States Post Office or in a Post Office Box. See
Fed. R. Civ. P. 5(b) (“Service by mail is complete upon mailing.”); Greene v. WCI
Holdings Corp., 136 F.3d 313, 315 (2d Cir.), cert. denied, 119 S. Ct. 448 (1998);
United States v. Kennedy, 133 F.3d 53, 59 (D.C. Cir.), cert. denied, 119 S. Ct. 255
(1998); Rivera v. M/T Fossarina, 840 F.2d 152, 155 (1st Cir. 1988). Therefore,
Theede’s argument that he was not served until he received the magistrate’s
recommendation on January 22, 1998 has no force. However, Theede contends that
the magistrate’s recommendation was mailed to an incorrect address, thus arguably
it was not mailed to Theede’s “last known address” as Rule 5(b) requires. The
magistrate’s recommendation was mailed to Theede’s street address with the 80202
zip code; Theede’s correct zip code is 80246. Thus, the magistrate’s
recommendation was mailed to the wrong address.
However, the appellees respond that any confusion regarding Theede’s address
emanated from his use of “no fewer than five different zip codes for his address . .
. [in] Denver, CO: 80202, 80212, 80222, 80241, and 80246.” According to the Local
Rules of the United States District Court for the District of Colorado: “The address
of a party shall appear on the first paper filed by an attorney on behalf of that party
-9- or by the party pro se.” D.C.COLO.LR 5.1.K. Further, the local rules require
“[w]ithin ten days after any change of address or telephone number of any attorney
or party, notice of the new address and telephone number shall be filed.”
D.C.COLO.LR 5.1.L. In the record on appeal before this court, Theede failed to
include the original complaint he filed in the district court. Thus, for the purposes
of this appeal, the “first paper filed” by Theede is his Amended Complaint, filed
June 24, 1997, on the front page of which he listed his zip code as 80202. Theede
has failed to demonstrate that he ever filed “notice of [his] new address” with the
district court. Instead, he implicitly argues that the district court should have
examined, on its own initiative, the address he used in later filings and extracted
from those papers Theede’s proper zip code. However, we believe the District of
Colorado Local Rules place the burden on the parties to formally direct the attention
of the court to any change of address. Cf. Gille v. United States, 33 F.3d 46, 47
(10th Cir. 1994) (IRS “entitled to rely on the address used on the return for the tax
year in question,” unless “taxpayer can prove that he or she has provided clear and
concise notice of a new address”); Tadros v. Commissioner of Internal Revenue, 763
F.2d 89, 91 (2d Cir. 1985) (“it becomes the responsibility of the taxpayer to
communicate to the commissioner a ‘clear and concise notification’ of any change
in address.” (quoting Wallin v. Commissioner, 744 F.2d 674, 676 (9th Cir. 1984)));
St. Louis v. Alverno College, 744 F.2d 1314, 1316 (7th Cir. 1984) (“The burden of
- 10 - providing the EEOC with change of address [in Title VII action] is minimal. It is
unreasonable to expect the EEOC to pore over its files, and those of state
administrative agencies, in an effort to ascertain which of the addresses contained
therein is correct.” (emphasis added)); Needham v. United States, 564 F. Supp. 419,
422 (W.D. Okla. 1983) (“The IRS may generally rely on the address shown on the
taxpayer’s income tax return for the year in suit unless the taxpayer actually notifies
the IRS of his change of address. The mere filing of a later return in a different IRS
district does not give the IRS proper notice of a change of address. . . . [U]nless the
attention of the IRS is directed to the change of address in a clear and concise way,
the IRS may still rely on the address of the taxpayer as shown on the return in
question.” (emphasis added)).
It would be unreasonable to require courts to wade through a party’s file in
order to determine the most recent or most likely address at which to contact the
party. The parties are far better situated to know of any errors in their address
information, thus, they bear the burden of filing notice of a change of address in such
a way that will bring the attention of the court to the address change. Subtle changes
of address, buried in the affirmation portion of papers filed with the court cannot
suffice. The fact that Theede is acting pro se does not eliminate this burden. See
Crawford v. Doe, Civ. A. No. 87-1211 SSH, 1987 WL 20245, at *1 (D.D.C. Nov. 6,
1987) (“Local Rule 106(d) requires a party not represented by counsel, such as
- 11 - plaintiff, to file with the Court a notification of change of address within 10 days of
the change. The fact that plaintiff is acting pro se does not discharge his duties to
‘abide by the rules of the court in which he litigates.’” (quoting Carter v.
Commissioner of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986))).
In light of Theede’s failure to direct the district court’s attention to any change
of address, the court reasonably concluded that Theede’s “last known address” was
in the 80202 zip code. That is the address to which the magistrate’s recommendation
was sent. Consequently, Theede was served according to the Federal Rules of Civil
Procedure on December 2, 1997. Excluding Saturdays and Sundays and adding 3
days because the recommendation was served by mail, Theede’s time to object to the
magistrate’s recommendation expired on December 19, 1997. As he acknowledges,
Theede did not file his objections to the magistrate’s recommendation until February
2, 1998.
Thus, under our “firm waiver rule,” Theede waived his right to appellate
review. See Moore, 950 F.2d at 659. This rule applies to pro se litigants so long as
they were “properly informed of the consequences of [their] failure to object.”
Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996). However, “[w]e may
make an exception to this rule, where the interests of justice so require.” Id.
In this case, the interests of justice militate against making an exception to the
rule. First, Theede himself was the source of all the confusion about his proper zip
- 12 - code. He submitted no less than five different zip codes for the same street address,
without ever formally advising the court of any change of address or address
correction.
Second, Theede has presented no evidence that he attempted to obtain the
magistrate’s recommendation after learning about it by way of the district court’s
order adopting the recommendation and dismissing Theede’s amended complaint.
On January 12, 1998, after receiving the district court’s order of December 26, 1997
adopting the magistrate’s recommendation (which was mailed to the 80202 zip code
like all other court correspondence), Theede filed a Motion for Reconsideration, in
which he stated: “Plaintiff is unaware of Magistrate Judge Abram’s recommendations
on December 2, 1997, and therefore was not permitted to respond to such
recommendations, whatever they may have been.” However, Theede has failed to
identify any efforts he made to obtain the magistrate’s recommendation after being
made aware of its existence.
Third, after our review of the record and the law, we are convinced that on the
merits Theede’s claims are suspect at best. We agree with the magistrate’s
recommendation, as adopted by the district court, that Theede’s FECA claims are not
reviewable in the federal courts and his FTCA claims either are directed at the
incorrect parties or are barred by res judicata.
- 13 - Accordingly, we conclude that the interests of justice do not require that we
overlook Theede’s failure to object to the magistrate's recommendation in a timely
manner. As such, we find that Theede waived his right to appeal and we DISMISS. 2
2 Further, we deny appellant’s “Motion For Leave of the Appellate Court For Clarifications Before a District Court Judge and to Remand,” his “Motion For Leave of the Appellate Court For the Deposition of John A. Sbarbaro,” and his “Motion for Sanctions Pursuant to Fed. R. App. P. Rule 40, Tenth Circuit Rule 40.1.”
- 14 -