Theede v. U.S. Dept. of Labor, 98-1071

Citation172 F.3d 1262
Decision Date13 April 1999
Docket NumberNo. 98-1071,98-1071
Parties1999 CJ C.A.R. 2021 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

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"). 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 unless represented by counsel. Specifically, the recommendation noted that the "law 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 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 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."

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...

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