Barger v. Astrue
U n i t e d States Court of Appeals T e n t h Circuit
S e p t e m b e r 14, 2010
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E F O R THE TENTH CIRCUIT
C l e r k of Court
K I M BARGER, Plaintiff-Appellant, v. M I C H A E L J. ASTRUE, Commissioner o f Social Security Administration, Defendant-Appellee. N o . 09-3313 ( D . C . No. 6:08-CV-01333-MLB) ( D . Kan.)
O R D E R AND JUDGMENT * B e f o r e TACHA, HOLLOWAY, and ANDERSON, Circuit Judges.
P l a i n t i f f Kim Barger appeals from a district court order affirming the C o mmi s s i o n e r ' s decision to deny disability benefits. In so ruling, the district c o u r t adopted the thorough recommendation of the magistrate judge, to which M s . Barger, then represented by counsel, had filed no objections. Applying the f i r m waiver rule that governs such circumstances in this circuit, we affirm.
A f t e r examining the briefs and appellate record, this panel has determined u n a n i mo u s l y that oral argument would not materially assist the determination of t h i s appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t h e r e f o r e ordered submitted without oral argument. This order and judgment is n o t binding precedent, except under the doctrines of law of the case, res judicata, a n d collateral estoppel. It may be cited, however, for its persuasive value c o n s i s t e n t with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
" T h i s court has adopted a firm waiver rule under which a party who fails to ma k e a timely objection to the magistrate judge's findings and recommendations w a i v e s appellate review of both factual and legal questions." Morales-Fernandez v . INS, 418 F.3d 1116, 1119 (10th Cir. 2005). The rule may be suspended in both p r o se and counseled cases where the interests of justice favor review, id., but this e x c e p t i o n is especially narrow "in counseled, civil, nonhabeas cases," such as the o n e before us. Key Energy Res., Inc. v. Merrill (In re Key Energy Res., Inc.), 2 3 0 F.3d 1197, 1200 (10th Cir. 2000). Here, "the merits of the underlying case s h o u l d not be considered in determining whether the interests of justice exception h a s been met;" instead, our focus is limited to "the facts [if any] that purport to e x c u s e the lack or untimeliness of the filing of objections" by counsel. 1 Id. This court provided Ms. Barger an opportunity to address the applicability o f the firm waiver rule to her appeal. In her response, she did not offer any facts e x c u s i n g counsel's failure to object to the magistrate judge's recommendation. R a t h e r , the thrust of her response was that she should not bear the consequences o f her counsel's unexcused omission.
I n contrast, the importance of the issues raised is a relevant consideration i n assessing the interests of justice exception in pro se cases, Morales-Fernandez, 4 1 8 F.3d at 1120, and the waiver rule will be suspended if the pro se litigant can d e mo n s t r a t e plain error in the magistrate judge's unobjected-to recommendation, i d . at 1122; see, e.g., Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008) ( f o l l o w i n g Morales-Fernandez and applying plain-error review in pro se case); W a r d e l l v. Duncan, 470 F.3d 954, 958 (10th Cir. 2006) (same). -2-
T h a t argument is singularly unavailing. Counseled litigants are generally b o u n d by the actions of their legal representatives. Gripe v. City of Enid, 3 1 2 F.3d 1184, 1189 (10th Cir. 2002). 2 And to deviate from that general principle s p e c i f i c a l l y in connection with our firm waiver rule, allowing litigants to pursue o b j e c t i o n s previously forfeited without excuse by their counsel, would effectively n u l l i f y the operation of the waiver rule in counseled casesprecisely where it is me a n t to have its most rigorous application. Our case law does not support such a r e s u l t . Indeed, this court has consistently refused to suspend operation of the rule w h e r e the failure to object was the result of counsel's omission, neglect, or i g n o r a n c e of the law. See, e.g., Montoya v. Garcia (In re Garcia), 347 F. App'x 3 8 1 , 382-83 (10th Cir. 2009); Smith v. SDI Indus., Inc., 260 F. App'x 93, 94-95 ( 1 0 t h Cir. 2008); Neely v. Ortiz, 241 F. App'x 474, 477 & n.1 (10th Cir. 2007).
W e elaborated on this point in Gripe with the following quotation from the S u p r e me Court's decision in Link v. Wabash R. R. Co., 370 U.S. 626 (1962): " T h e r e is certainly no merit to the contention that dismissal of p e t i t i o n e r ' s claim because of his counsel's unexcused conduct i mp o s e s an unjust penalty on the client. Petitioner voluntarily chose t h i s attorney as his representative in the action, and he cannot now a v o i d the consequences of the acts or omissions of this freely s e l e c t e d agent. Any other notion would be wholly inconsistent with o u r system of representative litigation, in which each party is deemed b o u n d by the acts of his lawyer-agent and is considered to have n o t i c e of all facts, notice of which can be charged upon the attorney." G r i p e , 312 F.3d at 1189 (quoting Link, 370 U.S. at 633-34). -3-
I n light of the procedural rights at stake, counsel need to be vigilant in p r e s e r v i n g grounds for appeal when cases proceed initially before a magistrate j u d g e . If, for whatever reason, counsel do not intend to file objections to an e n s u i n g recommendation, they should inform their clients of that decision and its p r o c e d u r a l consequences before those consequences take effect. Counsel who do n o t fulfill this basic responsibility leave their clients in the worst possible p o s i t i o n : at least if the client were proceeding pro se, the waiver rule would be c o n s i d e r a b l y more lenient. Here, it appears Ms. Barger's attorney did nothing u n t i l the district court adopted the unobjected-to recommendation, and then just s e n t a letter informing her of the court's adverse decision and his unwillingness to t a k e an appeal on her behalf because he "d[id] not think an appeal would be s u c c e s s f u l . " R. vol. 1 at 410. Ironically, regardless of whether there was any me r i t to Ms. Barger's case, that assessment of success on appeal is undeniably c o r r e c t due to counsel's own inaction. The judgment of the district court is AFFIRMED. Appellant's motion for l e a v e to proceed in forma pauperis on appeal is GRANTED.
Entered for the Court D e a n e l l Reece Tacha C i r c u i t Judge
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