Theede v. LABR

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROBERT L. THEEDE,

Plaintiff - Appellant,

v. 98-1071
(D. C. No. 97-B-388)
UNITED STATES DEPARTMENT (D. Colo.)
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.

ORDER
Filed April 13, 1999

Before BRORBY, EBEL and LUCERO, Circuit Judges.

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.

Entered for the Court

PATRICK FISHER
Clerk of Court

By:
Keith Nelson
Deputy Clerk

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 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 13 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

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 No. 98-1071
PROGRAMS; ANDREW THARP;
WILLIAM L. ROBERTS;
CLARENCE H. NIXON; WAYNE D.
THOMPSON; DEAN R. STORDAHL;
AUSMA S. BLUMENTHAL; NEAL
C. LAWSON; N. DIXON,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-B-388)

Submitted on the briefs: *

Robert L. Theede, Pro Se.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause therefore is
ordered submitted without oral argument.
Henry L. Solano, United States Attorney and Michael E. Hegarty, Assistant United
States Attorney, Denver, Colorado.

Before BRORBY, EBEL and LUCERO, Circuit Judges.

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

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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

1
According to the magistrate’s recommendation, Theede appealed the June
1, 1996 letter decision, a hearing was held in June 1997, and on August 5, 1997,
the Department of Labor affirmed the decision terminating Theede’s benefits,
through its Office of Workers’ Compensation Programs. The August 5, 1997
decision informed Theede that he had 90 days from the date of the decision to
appeal to the Employees’ Compensation Appeals Board. Theede has presented no
evidence that he did so.

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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

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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

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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

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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.”

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 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 the attorney or party or by mailing it to the attorney or party at

the attorney’s or party’s last known address . . . .” (emphasis added). Rule 6

modifies both Rule 5 and Rule 72. First, Rule 6(a) states that “[w]hen the period of

time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and

legal holidays shall be excluded in the computation.” Because Rule 72 permits only

10 days for objections to a magistrate’s recommendation, Rule 6 excludes Saturdays,

Sundays, and legal holidays from that 10 day period. Further, Rule 6(e) states:

“Whenever a party has the right or is required to do some act or take some

proceedings within a prescribed period after the service of a notice or other paper

upon the party and the notice or paper is served upon the party by mail, 3 days shall

be added to the prescribed period.” Thus, because the magistrate’s recommendation

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was served on Theede by mail, the period for his response must be enlarged by 3

days.

Service by mail is accomplished, for purposes of Rule 5, when documents are

placed in the hands of the United States Post Office or in a Post Office Box. See

Fed. R. Civ. P. 5(b) (“Service by mail is complete upon mailing.”); Greene v. WCI

Holdings Corp., 136 F.3d 313, 315 (2d Cir.), cert. denied, 119 S. Ct. 448 (1998);

United States v. Kennedy, 133 F.3d 53, 59 (D.C. Cir.), cert. denied, 119 S. Ct. 255

(1998); Rivera v. M/T Fossarina, 840 F.2d 152, 155 (1st Cir. 1988). Therefore,

Theede’s argument that he was not served until he received the magistrate’s

recommendation on January 22, 1998 has no force. However, Theede contends that

the magistrate’s recommendation was mailed to an incorrect address, thus arguably

it was not mailed to Theede’s “last known address” as Rule 5(b) requires. The

magistrate’s recommendation was mailed to Theede’s street address with the 80202

zip code; Theede’s correct zip code is 80246. Thus, the magistrate’s

recommendation was mailed to the wrong address.

However, the appellees respond that any confusion regarding Theede’s address

emanated from his use of “no fewer than five different zip codes for his address . .

. [in] Denver, CO: 80202, 80212, 80222, 80241, and 80246.” According to the Local

Rules of the United States District Court for the District of Colorado: “The address

of a party shall appear on the first paper filed by an attorney on behalf of that party

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or by the party pro se.” D.C.COLO.LR 5.1.K. Further, the local rules require

“[w]ithin ten days after any change of address or telephone number of any attorney

or party, notice of the new address and telephone number shall be filed.”

D.C.COLO.LR 5.1.L. In the record on appeal before this court, Theede failed to

include the original complaint he filed in the district court. Thus, for the purposes

of this appeal, the “first paper filed” by Theede is his Amended Complaint, filed

June 24, 1997, on the front page of which he listed his zip code as 80202. Theede

has failed to demonstrate that he ever filed “notice of [his] new address” with the

district court. Instead, he implicitly argues that the district court should have

examined, on its own initiative, the address he used in later filings and extracted

from those papers Theede’s proper zip code. However, we believe the District of

Colorado Local Rules place the burden on the parties to formally direct the attention

of the court to any change of address. Cf. Gille v. United States, 33 F.3d 46, 47

(10th Cir. 1994) (IRS “entitled to rely on the address used on the return for the tax

year in question,” unless “taxpayer can prove that he or she has provided clear and

concise notice of a new address”); Tadros v. Commissioner of Internal Revenue, 763

F.2d 89, 91 (2d Cir. 1985) (“it becomes the responsibility of the taxpayer to

communicate to the commissioner a ‘clear and concise notification’ of any change

in address.” (quoting Wallin v. Commissioner, 744 F.2d 674, 676 (9th Cir. 1984)));

St. Louis v. Alverno College, 744 F.2d 1314, 1316 (7th Cir. 1984) (“The burden of

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providing the EEOC with change of address [in Title VII action] is minimal. It is

unreasonable to expect the EEOC to pore over its files, and those of state

administrative agencies, in an effort to ascertain which of the addresses contained

therein is correct.” (emphasis added)); Needham v. United States, 564 F. Supp. 419,

422 (W.D. Okla. 1983) (“The IRS may generally rely on the address shown on the

taxpayer’s income tax return for the year in suit unless the taxpayer actually notifies

the IRS of his change of address. The mere filing of a later return in a different IRS

district does not give the IRS proper notice of a change of address. . . . [U]nless the

attention of the IRS is directed to the change of address in a clear and concise way,

the IRS may still rely on the address of the taxpayer as shown on the return in

question.” (emphasis added)).

It would be unreasonable to require courts to wade through a party’s file in

order to determine the most recent or most likely address at which to contact the

party. The parties are far better situated to know of any errors in their address

information, thus, they bear the burden of filing notice of a change of address in such

a way that will bring the attention of the court to the address change. Subtle changes

of address, buried in the affirmation portion of papers filed with the court cannot

suffice. The fact that Theede is acting pro se does not eliminate this burden. See

Crawford v. Doe, Civ. A. No. 87-1211 SSH, 1987 WL 20245, at *1 (D.D.C. Nov. 6,

1987) (“Local Rule 106(d) requires a party not represented by counsel, such as

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plaintiff, to file with the Court a notification of change of address within 10 days of

the change. The fact that plaintiff is acting pro se does not discharge his duties to

‘abide by the rules of the court in which he litigates.’” (quoting Carter v.

Commissioner of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986))).

In light of Theede’s failure to direct the district court’s attention to any change

of address, the court reasonably concluded that Theede’s “last known address” was

in the 80202 zip code. That is the address to which the magistrate’s recommendation

was sent. Consequently, Theede was served according to the Federal Rules of Civil

Procedure on December 2, 1997. Excluding Saturdays and Sundays and adding 3

days because the recommendation was served by mail, Theede’s time to object to the

magistrate’s recommendation expired on December 19, 1997. As he acknowledges,

Theede did not file his objections to the magistrate’s recommendation until February

2, 1998.

Thus, under our “firm waiver rule,” Theede waived his right to appellate

review. See Moore, 950 F.2d at 659. This rule applies to pro se litigants so long as

they were “properly informed of the consequences of [their] failure to object.”

Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996). However, “[w]e may

make an exception to this rule, where the interests of justice so require.” Id.

In this case, the interests of justice militate against making an exception to the

rule. First, Theede himself was the source of all the confusion about his proper zip

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code. He submitted no less than five different zip codes for the same street address,

without ever formally advising the court of any change of address or address

correction.

Second, Theede has presented no evidence that he attempted to obtain the

magistrate’s recommendation after learning about it by way of the district court’s

order adopting the recommendation and dismissing Theede’s amended complaint.

On January 12, 1998, after receiving the district court’s order of December 26, 1997

adopting the magistrate’s recommendation (which was mailed to the 80202 zip code

like all other court correspondence), Theede filed a Motion for Reconsideration, in

which he stated: “Plaintiff is unaware of Magistrate Judge Abram’s recommendations

on December 2, 1997, and therefore was not permitted to respond to such

recommendations, whatever they may have been.” However, Theede has failed to

identify any efforts he made to obtain the magistrate’s recommendation after being

made aware of its existence.

Third, after our review of the record and the law, we are convinced that on the

merits Theede’s claims are suspect at best. We agree with the magistrate’s

recommendation, as adopted by the district court, that Theede’s FECA claims are not

reviewable in the federal courts and his FTCA claims either are directed at the

incorrect parties or are barred by res judicata.

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 Accordingly, we conclude that the interests of justice do not require that we

overlook Theede’s failure to object to the magistrate's recommendation in a timely

manner. As such, we find that Theede waived his right to appeal and we DISMISS. 2

2
Further, we deny appellant’s “Motion For Leave of the Appellate Court
For Clarifications Before a District Court Judge and to Remand,” his “Motion For
Leave of the Appellate Court For the Deposition of John A. Sbarbaro,” and his
“Motion for Sanctions Pursuant to Fed. R. App. P. Rule 40, Tenth Circuit Rule
40.1.”

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