Britt v. Simi Valley Unified School Dist., No. 81-5284

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before WRIGHT, ALARCON, and REINHARDT
• Parties: Bryant R. BRITT, Plaintiff-Appellant, v. SIMI VALLEY UNIFIED SCHOOL DISTRICT: John W. Duncan; George Hawkins; Robert Marcus; Allen Jacobs; Kenneth Ashton; Frederick Riess; Viola Brooks; Lewis Roth; Stephen Hogg; Sandra Binns; Helen E. Carrico; and David McCamy, Defendants-Appellees.
• Decision Date: 13 June 1983
• Docket Number: No. 81-5284

Page 452

708 F.2d 452 Bryant R. BRITT, Plaintiff-Appellant,
v.
SIMI VALLEY UNIFIED SCHOOL DISTRICT: John W. Duncan;
George Hawkins; Robert Marcus; Allen Jacobs; Kenneth
Ashton; Frederick Riess; Viola Brooks; Lewis Roth;
Stephen Hogg; Sandra Binns; Helen E. Carrico; and David
McCamy, Defendants-Appellees. No. 81-5284. United States Court of Appeals,
Ninth Circuit. June 13, 1983.

Page 453

Bryant R. Britt, in pro. per.

Linda Hamlin, McKay & Byrne, Los Angeles, Cal., Spray, Gould & Bowers, Ventura, Cal., for defendants-appellees.

Before WRIGHT, ALARCON, and REINHARDT, Circuit Judges.

ORDER DENYING PETITION FOR REHEARING

Because the lateness of the Petition for Rehearing was the result of representations by court personnel, we grant the motion to enlarge the time for filing of the petition. Our previous order denying the petition is withdrawn.

Britt brought a civil rights action under 42 U.S.C. Sec. 1983, challenging his dismissal from his teaching job. A magistrate recommended that appellees' motion to dismiss be granted. He concluded that Britt's failure to exhaust administrative remedies precluded suit. The parties filed no objections to the recommendation and the district court dismissed the action. Appellees contend that Britt waived any right to appeal the court's decision below by failing to object to the magistrate's recommendation. We disagree.

Under 28 U.S.C. Sec. 636(b)(1)(B) (Supp. V 1981), a judge may designate a magistrate to submit proposed findings of fact and recommendations for the disposition of a motion to dismiss. The statute provides,

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings

Page 454

and recommendations as provided by rules of court. 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.

28 U.S.C. Sec. 636(b)(1) (Supp. V 1981).

The language of the statute does not indicate that failure to object to a magistrate's recommendation will be an absolute bar to appeal from the district court's decision. See Lorin Corp. v. Goto & Co., 700 F.2d 1202, 1206 (8th Cir.1983); Nettles v. Wainwright, 677 F.2d 404, 407 (5th Cir.1982) (en banc) (Unit B); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). Contra Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-05 (1st Cir.1980). It specifies only that a judge shall make a de novo determination of findings or recommendations to which objection has been made.

We find no indication elsewhere that failure to object should be treated as a waiver of the right to appeal. The legislative history of the section does not show Congressional intent that failure to object should absolutely bar appeal. See Lorin, 700 F.2d at 1206. Proposed Federal Rule of Civil Procedure 72, which will govern magistrates' recommendations, includes no provision that failure to object will constitute a waiver of appeal. 51...