172 F.3d 1262 (10th Cir. 1999), 98-1071, Theede v. United States Dept. of Labor

Docket Nº:98-1071.
Citation:172 F.3d 1262
Party Name:Robert L. THEEDE, Plaintiff--Appellant, v. UNITED STATES DEPARTMENT 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.
Case Date:April 13, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1262

172 F.3d 1262 (10th Cir. 1999)

Robert L. THEEDE, Plaintiff--Appellant,

v.

UNITED STATES DEPARTMENT 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.

No. 98-1071.

United States Court of Appeals, Tenth Circuit

April 13, 1999

Page 1263

Submitted on the briefs: [*]

Robert L. Theede, Pro Se.

Henry L. Solano, United States Attorney and Michael E. Hegarty, Assistant United States Attorney, Denver, Colorado.

Before BRORBY, EBEL and LUCERO, Circuit Judges.

ORDER

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.

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").

Page 1264

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 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 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...

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