Douglass v. United Services Auto. Ass'n

• Decision Date: 28 March 1996
• Docket Number: No. 95-50007,95-50007
• Citation: 79 F.3d 1415
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 701, 64 USLW 2634, 34 Fed.R.Serv.3d 507 Paul W. DOUGLASS, Plaintiff-Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1415

79 F.3d 1415

70 Fair Empl.Prac.Cas. (BNA) 701, 64 USLW 2634,

34 Fed.R.Serv.3d 507

Paul W. DOUGLASS, Plaintiff-Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appellee.

No. 95-50007.

United States Court of Appeals,

Fifth Circuit.

March 28, 1996.

Paul W. Douglass, Gerrardstown, WV, pro se.

Cynthia Glass Bivins, John Joseph Franco, Jr., Groce, Locke & Hebdon, San Antonio, TX, for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges. ^*

RHESA HAWKINS BARKSDALE, Circuit Judge:

We took this case en banc to reconsider our rule that, if a party does not timely file objections with the district court to a magistrate judge's report and recommendation, that party is barred on appeal to this court, except upon grounds of plain error or manifest injustice, from challenging the proposed findings of fact accepted by the district court, provided the party was served by the magistrate judge with notice of the consequences for the failure to object. On the other hand, under this rule, a magistrate judge's unobjected-to proposed legal conclusions accepted by the district court have not been subjected to this limited review.

The critical issue in this pro se appeal by Paul W. Douglass from a summary judgment is our standard of review, in that Douglass did not file objections to the magistrate judge's report and recommendation, which the district court accepted. The panel concluded that our court's rule required de novo review of the issues of law presented, even though, in essence, those issues are being raised on appeal for the first time. Douglass v. United Services Automobile Ass'n, 65 F.3d 452, reh'g granted, 70 F.3d 335 (5th Cir.1995). The panel recommended rehearing en banc to reconsider our rule. ¹

Today, pursuant to our supervisory rule-making power, we revise our rule in two significant, and one minor, respects. We hold that failure to object timely to a magistrate judge's report and recommendation bars a party, except upon grounds of plain error (our former rule's inclusion in this part of the rule of "or manifest injustice", if that was an alternative basis for limited review, has been deleted), from attacking on appeal not only the proposed factual findings (as under the former rule), but also the proposed legal conclusions, accepted (the term "or adopted" used in our former rule is redundant and, as a minor change, has been deleted) by the district court, provided that the party has been served with notice that such consequences will result from a failure to object ("appellate forfeiture rule for accepted unobjected-to proposed findings and conclusions").

Douglass challenges the summary judgment dismissing his age discrimination claims against his former employer, United Services Automobile Association (USAA). Because the appellate forfeiture warning he received from the magistrate judge was under the former, rather than our new, rule, we must apply the former rule to him. In any event, we AFFIRM.

I.

Douglass, born in 1927, and employed by USAA in February 1980 as a programmer, was placed on probation in December 1991. Shortly thereafter, in February 1992, he was removed from his position and placed in a holding unit, where USAA employees who had been removed from positions for which they were unqualified were given an opportunity to try to find another position within the company. While in the holding unit, Douglass was offered a position as an automated data processing technician, which he accepted that March. As a result of the change in positions, Douglass' pay was reduced almost 11%.

In July 1993, Douglass filed this action against USAA, claiming that it discriminated against him because of his age when it removed him from his programmer position and forced him to accept another position with reduced salary and benefits. ² Douglass alleged that, in 1990, he began receiving poor work evaluations and was excluded from beneficial work assignments because of his age.

Pursuant, among other things, to 28 U.S.C. § 636(b)(1), the action was referred to a magistrate judge. USAA moved for summary judgment, maintaining that Douglass was removed from his position because of poor work performance, not age. USAA supported the motion with affidavits from Douglass' supervisors and personnel records documenting the deficiencies in his performance and the reasons for his removal from the programmer position. To his unsworn response, Douglass attached a copy of an affidavit that he had submitted to the Equal Employment Opportunity Commission, in which he expressed his subjective belief that he had been subjected to age discrimination. And, in his response, Douglass stated that records necessary to prove his claim were not available to him, and that he lacked the financial means to purchase copies of depositions that would assist the court in its ruling. USAA filed a reply, attaching deposition excerpts and additional affidavits in support of its claim that Douglass was removed from his position because of his performance, not age.

In a September 21, 1994, order, the magistrate judge stated that Douglass' response was deficient, but that he should be given another opportunity to provide summary judgment evidence. The order explained, in great detail, summary judgment procedure and Douglass' burden in responding to USAA's motion. Douglass was given until October 14 to respond. In addition, because of Douglass' pro se status and indigence, the magistrate judge ordered USAA to produce copies of all depositions to the court for in camera inspection, in order to determine whether there was any summary judgment evidence to support Douglass' claim. ³ On September 27, Douglass moved for a continuance, stating that he had moved to another state, and wanted to retain an attorney. ⁴ Douglass did not respond further to the summary judgment motion.

On October 27, the magistrate judge, pursuant to 28 U.S.C. § 636(b)(1)(B), recommended that summary judgment be granted USAA. The magistrate judge noted that Douglass had offered only conjecture, conclusions and opinions unsupported by fact-specific summary judgment evidence, and had, therefore, failed to raise a material fact issue in response to USAA's evidence that he was removed from his programmer position because of performance, not age.

Pursuant to our former rule, the magistrate judge warned at the conclusion of his report and recommendation that "any failure to file written objections to the proposed findings, conclusions and recommendation ... within 10 days after being served with a copy shall bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court, except upon grounds of plain error or manifest injustice ". Nevertheless, Douglass did not object. Pursuant to 28 U.S.C. § 636(b)(1), the district court accepted the report and recommendation and awarded judgment to USAA, noting that it need not conduct a de novo review of the report and recommendation because no party had objected.

II.

Douglass contends that the district court erred by granting summary judgment for USAA, asserting that his age was one of the reasons for his demotion. For starters, the parties disagree as to our standard of review. Douglass maintains that, as usual, the summary judgment should be reviewed de novo. USAA counters that, consistent with the warning in the magistrate judge's report and recommendation, and because Douglass failed to object, he is precluded from challenging any factual findings by the magistrate judge that were accepted or adopted by the district court, absent plain error or manifest injustice. We turn first to our standard of review.

A.

The standard of review analysis focuses on the two major parts of our rule that we change today: (1) applying the same consequences on appeal for a failure to object to a magistrate judge's proposed legal conclusions accepted by the district court as we do to the accepted unobjected-to proposed findings of fact; and (2) having "plain error", rather than "plain error or manifest injustice", as the only exception to our not reviewing the accepted unobjected-to proposed findings and conclusions.

These two changes overlap to a great degree, because they both concern concepts of "waiver" and "forfeiture". For example, as hereinafter developed, if the failure to object to the magistrate judge's report and recommendation is considered a waiver, then there are few, if any, exceptions, not even for plain error, to not reviewing issues raised for the first time on appeal concerning the unobjected-to proposed findings and conclusions accepted by the district court. But, if such failure to object is considered a forfeiture, as it is by our court, then there is a limited exception to not reviewing such issues raised on appeal for the first time; the question becomes how limited that exception should be.

Even though the rule, and the exception to the rule, often touch on the same questions and concerns, such as satisfying the "interests of justice", Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985), they are analyzed separately here; the resulting duplication is more than justified in avoiding the confusion, and complexity, that ensues in approaching the two changes as one.

Before addressing the more narrow question of the standard of review for a summary judgment, when objections are not made to a magistrate judge's report and recommendation, we examine, for such failure, our court's appellate forfeiture rule in general in this context. There is a six-five split between the circuits as to the consequences for a failure to so object. (Apparently, the only circuit that has not adopted a rule is that for...