                                                                                F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                 NOV 30 2004
                              FOR THE TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

    DARRYL RASDALL,

                Plaintiff-Appellee,

    v.                                                         No. 03-3378
                                                        (D.C. No. 01-CV-4043-JAR)
    JO ANNE B. BARNHART,                                         (D. Kan.)
    Commissioner of Social Security,

                Defendant-Appellant.


                               ORDER AND JUDGMENT              *




Before LUCERO , McKAY , and PORFILIO , Circuit Judges.



         The Commissioner appeals from a district court order reversing the denial

of social security benefits and remanding for further proceedings on the issue of

disability. Despite its inconclusive effect on the ultimate determination, the

district court’s order is a final, appealable disposition.      See Baca-Prieto v. Guigni ,

95 F.3d 1006, 1009 (10 th Cir. 1996) (discussing         Sullivan v. Finkelstein , 496 U.S.


*
       The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10 th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
617, 625 (1990)). As explained below, however, there is a separate procedural

deficiency in the Commissioner’s appeal that necessitates dismissal.

       This case was referred at the outset to a magistrate judge, who issued an

extensive report and recommendation in favor of reversal. After the time period

for objections expired without any response from the Commissioner, the district

court adopted the magistrate judge’s recommendation and entered judgment

accordingly. The Commissioner then filed a motion asking the court to consider

her belated objections and set aside the judgment. The district court considered

and rejected the Commissioner’s objections, and let the extant judgment stand.

After an unsuccessful motion to alter or amend the judgment, the Commissioner

commenced this appeal.

       “This court has adopted a firm waiver rule which provides that a litigant’s

failure to file timely objections to a magistrate’s report and recommendation

waives appellate review of both the factual and legal determinations.”     Key

Energy Res. Inc. v. Merrill (In re Key Energy Res. Inc.)    , 230 F.3d 1197,

1199-1200 (10 th Cir. 2000) (quotation omitted). A counseled party may avoid the

waiver only by demonstrating that suspension of the rule is “dictate[d]” by “the

interests of justice.”   Id. at 1200 (quotation omitted). This exception is a narrow

one, id. , and no justification for invoking it has been offered or affirmatively

appears from the circumstances of record.


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       On appeal, the Commissioner does not even acknowledge the relevant case

law and, thus, has made no effort to argue any basis for avoiding the waiver rule.

When submitting the untimely objections to the district court, the Commissioner

attributed the delay to an “oversight” due to internal “mis-communication.” App.

Vol. 1 at 58. Under our circuit precedent, this generic excuse falls far short of an

adequate justification for suspending the waiver rule.     See Key Energy Res. Inc. ,

230 F.3d at 1201 (rejecting counsel’s    hospitalization as an adequate excuse and

indicating that exception to waiver rule requires circumstance in which “counsel

was unable to timely file for an extension of time in which to prepare and file his

objections”).

       The Commissioner’s appellate brief does note that the district court elected

to consider (and reject) the untimely objections on the merits. But the law is clear

in this circuit that such discretionary largess by the district court does not negate

the appellate -waiver consequences of failing to object in a timely manner to the

magistrate judge’s report and recommendation.        See id. at 1201 n.3 (following

Vega v. Suthers , 195 F.3d 573, 580 (10 th Cir. 1999), to hold that district court

review of untimely objection “would not preclude application of the waiver rule

or somehow ‘revive’ [the waived] claims”).




                                            -3-
     As explained above, the Commissioner has waived appellate review. This

appeal is, accordingly, DISMISSED.



                                               Entered for the Court



                                               Carlos F. Lucero
                                               Circuit Judge




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