Duncan v. Social Security Administration
Filing
26
MEMORANDUM OPINION AND ORDER granting 18 MOTION to Remand to Agency and adopting 25 REPORT AND RECOMMENDATIONS by District Judge James O. Browning. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TAMA LYNN DUNCAN,
Plaintiff,
vs.
No. CIV 17-0697 JB/LF
NANCY A. BERRYHILL,
Deputy Commissioner for Operations
of the Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Magistrate Judge’s Proposed Findings
and Recommended Disposition, filed August 22, 2018 (Doc. 25)(“PFRD”). The PFRD notifies
the parties of their ability to file Objections within fourteen days, and that failure to do so waives
appellate review. To date, neither party has filed any Objections, nor is there anything in the
record indicating that the PFRD was not delivered. The Court concludes that the findings and
recommendations of the Honorable Laura Fashing, United States Magistrate Judge for the United
States District Court for the District of New Mexico, are not clearly erroneous, arbitrary,
obviously contrary to law, or an abuse of discretion, and the Court therefore adopts them. The
Court will grant Plaintiff’s Motion to Reverse and Remand for a Rehearing, filed February 2,
2018 (Doc. 18), and will remand this case to the Defendant, Nancy A. Berryhill, Deputy
Commissioner for Operations of the Social Security Administration, for further proceedings.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a recommended
disposition.
See Fed. R. Civ. P. 72(b)(1)(“A magistrate judge must promptly conduct the
required proceedings when assigned, without the parties’ consent, to hear a pretrial matter
dispositive of a claim or defense or a prisoner petition challenging the conditions of
confinement.”). Rule 72(b)(2) governs objections: “Within 14 days after being served with a
copy of the recommended disposition, a party may serve and file specific written objections to
the proposed findings and recommendations.” Finally, when resolving objections to a Magistrate
Judge’s proposal, “[t]he district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or return the matter to the magistrate
judge with instructions.” Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. § 636 provides:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1)(C).
“The filing of objections to a magistrate’s report enables the district judge to focus
attention on those issues -- factual and legal -- that are at the heart of the parties’ dispute.”
United States v. East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”)(quoting
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Thomas v. Arn, 474 U.S. 140, 147 (1985)). As the United States Court of Appeals for the Tenth
Circuit has noted, “the filing of objections advances the interests that underlie the Magistrate’s
Act,1 including judicial efficiency.” One Parcel, 73 F.3d at 1059(citing Niehaus v. Kansas Bar
Ass’n, 793 F.2d 1159, 1165 (10th Cir. 1986); United States v. Walters, 638 F.2d 947, 950 (6th
Cir. 1981)).
The Tenth Circuit has held “that a party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” One Parcel, 73 F.3d at 1060. “To further advance the
policies behind the Magistrate’s Act, [the Tenth Circuit], like numerous other circuits, ha[s]
adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the
magistrate’s findings or recommendations waives appellate review of both factual and legal
questions.’” One Parcel, 73 F.3d at 1059 (citations omitted). “[O]nly an objection that is
sufficiently specific to focus the district court’s attention on the factual and legal issues that are
truly in dispute will advance the policies behind the Magistrate’s Act.” One Parcel, 73 F.3d at
1060. In addition to requiring specificity in objections, the Tenth Circuit has stated that “[i]ssues
raised for the first time in objections to the magistrate judge’s recommendation are deemed
waived.” Marshall v. Chater, 75 F.3d 1030, 1030-31 (10th Cir. 1996). See United States v.
Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001)(“In this circuit, theories raised for the first
time in objections to the magistrate judge’s report are deemed waived.”). In an unpublished
opinion, the Tenth Circuit stated that “the district court correctly held that [a petitioner] had
1
Congress enacted the Federal Magistrates Act, 28 U.S.C. §§ 631-39, in 1968.
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waived [an] argument by failing to raise it before the magistrate.” Pevehouse v. Scibana, 229
F. App’x 795, 796 (10th Cir. 2007)(unpublished).2
In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expanded the
waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060.
The Supreme Court of the United States -- in the course of approving the United States Court of
Appeals for the Sixth Circuit’s use of the waiver rule -- has noted:
It does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings. The House and Senate Reports
accompanying the 1976 amendments do not expressly consider what sort of
review the district court should perform when no party objects to the magistrate’s
report. See S. Rep. No. 94-625, pp. 9-10 (1976) (hereinafter Senate Report); H.R.
Rep. No. 94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162
(hereinafter House Report). There is nothing in those Reports, however, that
demonstrates an intent to require the district court to give any more consideration
to the magistrate’s report than the court considers appropriate. Moreover, the
Subcommittee that drafted and held hearing on the 1976 amendments had before
it the guidelines of the Administrative Office of the United States Courts
concerning the efficient use of magistrates. Those guidelines recommended to the
district courts that “[w]here a magistrate makes a finding or ruling on a motion or
an issue, his determination should become that of the district court, unless specific
2
Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an
unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See
10th Cir. R. 32.1(a)(“Unpublished decisions are not precedential, but may be cited for their
persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its
disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court finds that Pevehouse
v. Scibana has persuasive value with respect to a material issue, and will assist the Court in its
disposition of this Memorandum Opinion and Order.
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objection is filed within a reasonable time.” See Jurisdiction of United States
Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in
Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st
Sess., 24 (1975) (emphasis added) (hereinafter Senate Hearings). The Committee
also heard Judge Metzner of the Southern District of New York, the chairman of a
Judicial Conference Committee on the administration of the magistrate system,
testify that he personally followed that practice. See id., at 11 (“If any objections
come in, . . . I review [the record] and decide it. If no objections come in, I
merely sign the magistrate’s order.”). The Judicial Conference of the United
States, which supported the de novo standard eventually incorporated in
§ 636(b)(1)(C), opined that in most instances no party would object to the
magistrate’s recommendation, and the litigation would terminate with the judge’s
adoption of the magistrate’s report. See Senate Hearings, at 35, 37. Congress
apparently assumed, therefore, that any party who was dissatisfied for any reason
with the magistrate’s report would file objections, and those objections would
trigger district court review. There is no indication that Congress, in enacting §
636(b)(1)(C), intended to require a district judge to review a magistrate’s report to
which no objections are filed. It did not preclude treating the failure to object as a
procedural default, waiving the right to further consideration of any sort. We thus
find nothing in the statute or the legislative history that convinces us that
Congress intended to forbid a rule such as the one adopted by the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 150-52 (footnotes omitted).
The Tenth Circuit has also noted, “however, that ‘[t]he waiver rule as a
procedural bar need not be applied when the interests of justice so dictate.’” One Parcel,
73 F.3d at 1060 (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir.
1991)(“We join those circuits that have declined to apply the waiver rule to a pro se
litigant’s failure to object when the magistrate’s order does not apprise the pro se litigant
of the consequences of a failure to object to findings and recommendations.”)(citations
omitted). Cf. Thomas v. Arn, 474 U.S. at 154 (noting that, while “[a]ny party that desires
plenary consideration by the Article III judge of any issue need only ask, . . . [a failure to
object] does not preclude further review by the district judge, sua sponte or at the request
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of a party, under a de novo or any other standard”). In One Parcel, the Tenth Circuit
noted that the district judge had decided sua sponte to conduct a de novo review despite
the lack of specificity in the objections, but the Tenth Circuit held that it would deem the
issues waived on appeal because it would advance the interests underlying the waiver
rule. See 73 F.3d at 1060-61 (citing cases from other Courts of Appeals where district
courts elected to address merits despite potential application of waiver rule, but Courts of
Appeals opted to enforce waiver rule).
Where a party files timely and specific objections to the Magistrate Judge’s
proposed findings and recommended disposition, “on [] dispositive motions, the statute
calls for a de novo determination, not a de novo hearing.” United States v. Raddatz, 447
U.S. 667, 674 (1980).
The Tenth Circuit has stated that a de novo determination,
pursuant to 28 U.S.C. § 636(b), “requires the district court to consider relevant evidence
of record and not merely review the magistrate judge’s recommendation.” In re Griego,
64 F.3d 580, 583-84 (10th Cir. 1995). The Supreme Court has noted that, although a
district court must make a de novo determination of the objections to recommendations
under 28 U.S.C. § 636(b)(1), the district court is not precluded from relying on the
Magistrate Judge’s proposed findings and recommendations.
See United States v.
Raddatz, 447 U.S. at 676 (“[I]n providing for a ‘de novo determination’ rather than de
novo hearing, Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings
and recommendations.”). See also Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42 of
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Stephens Cty., Okla., 8 F.3d 722, 724-25 (10th Cir. 1993)(finding that the district court’s
adoption of the Magistrate Judge’s “particular reasonable-hour estimates” is consistent
with de novo review, because the district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate, . . . [as] ‘Congress
intended to permit whatever reliance a district judge, in the exercise of sound judicial
discretion,
chose
to
place
on
a
magistrate’s
proposed
findings
and
recommendations.’”)(first quoting 28 U.S.C. § 636(b)(1); and then quoting United States
v. Raddatz, 447 U.S. at 676)(emphasis omitted).
Where no party objects to the Magistrate Judge’s proposed findings and
recommended disposition, the Court has, as a matter of course in the past and in the
interests of justice, reviewed the Magistrate Judge’s recommendations. In Workheiser v.
City of Clovis, No. CIV 12-0485 JB/GBW, 2012 WL 684640, at *3 (D.N.M. Dec. 28,
2012)(Browning, J.), where the plaintiff failed to respond to the Magistrate Judge’s
proposed findings and recommended disposition, although the Court determined that the
plaintiff “has waived his opportunity for the Court to conduct review of the factual and
legal findings in the [proposed findings and recommended disposition],” the Court
nevertheless conducted such a review. The Court generally does not, however, review
the Magistrate Judge’s proposed findings and recommended disposition de novo, and
determine independently necessarily what it would do if the issues had come before the
Court first, but rather adopts the proposed findings and recommended disposition where
“[t]he Court cannot say that the Magistrate Judge’s recommendation . . . is clearly
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erroneous, arbitrary, [obviously]3 contrary to law, or an abuse of discretion.” Workheiser
v. City of Clovis, 2012 WL 6846401, at *3. This review, which is deferential to the
Magistrate Judge’s work when there is no objection, nonetheless provides some review in
the interest of justice, and seems more consistent with the intent of the waiver rule than
no review at all or a full-fledged review. Accordingly, the Court considers this standard
of review appropriate. See Thomas v. Arn, 474 U.S. at 151 (“There is nothing in those
Reports, however, that demonstrates an intent to require the district court to give any
more consideration to the magistrate’s report than the court considers appropriate.”). The
3
The Court previously used as the standard for review when a party does not object to the
Magistrate Judge’s proposed findings and recommended disposition whether the
recommendations were “clearly erroneous, arbitrary, contrary to law, or an abuse of discretion”,
thus omitting “obviously” in front of “contrary to law.” Solomon v. Holder, No. CIV 12-1039
JB/LAM, 2013 WL 499300, at *4 (D.N.M. Jan. 31, 2013)(Browning, J.)(adopting the
recommendation to which there was no objection, stating: “The Court determines that the PFRD
is not clearly erroneous, arbitrary, contrary to law, or an abuse of discretion, and accordingly
adopts the recommendations therein.”); O’Neill v. Jaramillo, No. CIV 11-0858 JB/GBW, 2013
WL 499521 (D.N.M. Jan. 31, 2013)(Browning, J.)(“Having reviewed the PFRD under that
standard, the Court cannot say that the Magistrate Judge’s recommendation is clearly erroneous,
arbitrary, contrary to law, or an abuse of discretion. The Court thus adopts Judge Wormuth’s
PFRD.”)(citing Workheiser v. City of Clovis, 2012 WL 6846401, at *3); Galloway v. JP Morgan
Chase & Co., No. CIV 12-0625 JB/RHS, 2013 WL 503744 (D.N.M. Jan. 31, 2013)(Browning,
J.)(adopting the Magistrate Judge’s recommendations upon determining that they were not
“clearly contrary to law, or an abuse of discretion.”). The Court does not believe that “contrary
to law” accurately reflects the deferential standard of review that the Court intends to use when
there is no objection. Finding that a Magistrate Judge’s recommendation is contrary to law
would require the Court to analyze the Magistrate Judge’s application of law to the facts or the
Magistrate Judge’s delineation of the facts -- in other words performing a de novo review, which
is required only when a party objects to the recommendations. The Court believes adding
“obviously” better reflects that the Court is not performing a de novo review of the Magistrate
Judge’s recommendations. Going forward, therefore, the Court will, as it has done for some time
now, review Magistrate Judges’ recommendations to which there are no objections for whether
the recommendations are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.
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Court is reluctant to have no review at all if its name is going to go at the bottom of the
order adopting the Magistrate Judge’s proposed findings and recommended disposition.
ANALYSIS
The Court has carefully reviewed the PFRD. The Court did not review the PFRD de
novo, because the parties have not objected to it, but rather the Court reviewed Judge Fashing’s
findings and recommendations to determine if they are clearly erroneous, arbitrary, obviously
contrary to law, or an abuse of discretion. The Court determines that they are not clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. Accordingly, the Court
will adopt the recommendations.
IT IS ORDERED that: (i) the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed August 22, 2018 (Doc. 25), is adopted; (ii) the Plaintiff’s Motion to Reverse
and Remand for a Rehearing, filed February 2, 2018 (Doc. 18) is granted; (iii) this matter is
remanded to the Defendant, Nancy A. Berryhill, Deputy Commissioner for Operations of the
Social Security Administration, for further proceedings; and (iv) a Final Judgment is entered
concurrently herewith.
________________________________
UNITED STATES DISTRICT JUDGE
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Counsel:
Laura J. Johnson
Michael D. Armstrong
Michael Armstrong Law Offices
Albuquerque, New Mexico
Attorneys for the Plaintiff
Kathryn C. Bostwick
Social Security Administration - Office of the General Counsel
Denver, Colorado
--and-Manuel Lucero
Assistant United States Attorney
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for the Defendant
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