                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        August 8, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
DWAYNE K. MOORE,

             Plaintiff-Appellant,

v.                                                        No. 11-6235
                                                   (D.C. No. 5:10-CV-00567-C)
MICHAEL J. ASTRUE, Commissioner,                          (W.D. Okla.)
Social Security Administration,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before HARTZ, ANDERSON, and O’BRIEN, Circuit Judges.



      Dwayne K. Moore appeals the district court’s order affirming the

Commissioner’s denial of his application for Social Security disability benefits.

Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we apply the

firm waiver rule and dismiss the appeal.



*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Moore filed this action in district court to appeal the Commissioner’s decision

denying him disability benefits. A magistrate judge issued a Report and

Recommendation (R&R) to affirm the Commissioner’s decision. The R&R advised

Moore of his right to file objections and the deadline for doing so. It also cautioned

that a failure to file timely objections would waive his right to appellate review of

both factual and legal questions. Moore filed timely objections to the R&R, but he

stated only the following:

              Plaintiff objects generally to every finding [in the R&R] and
       specifically to any finding that runs contrary to the allegations and
       points of error in his Brief in Chief and Reply. Plaintiff has properly
       identified numerous points of error in the format required by this Court,
       and they have been summarily and improperly rejected by the
       Magistrate. Plaintiff disagrees so thoroughly with each and every
       finding by the Magistrate that it would serve no useful purpose to
       specifically identify each point of disagreement, because he disagrees
       with everything.

Aplee. Br., Attachment D at 1-2. In its order adopting the R&R, the district court

stated, “Plaintiff’s objection lacks specificity, fails to identify any factual or legal

error, and makes no effort to focus the Court’s attention on the alleged error.

Consequently, and consistent with Tenth Circuit precedent, the Court finds Plaintiff

has waived the right to review of the Magistrate Judge’s findings.” Aplt. App. at 40.

The district court therefore declined to review the R&R de novo and adopted it in its

entirety.

       We have adopted a “firm waiver rule” providing that “the failure to make

timely objections to the magistrate judge’s findings or recommendations waives


                                            -2-
appellate review of both factual and legal questions.” United States v. One Parcel of

Real Property, 73 F.3d 1057, 1059 (10th Cir. 1996) (quotations omitted). To

preserve an issue for appellate review, “a party’s objections to the magistrate judge’s

report and recommendation must be both timely and specific.” Id. at 1060 (emphasis

added). In One Parcel of Real Property, the plaintiffs filed objections in which they

asked the district court to reconsider a magistrate judge’s R&R “based on the

motions, exhibits, testimony, briefs, and arguments” they had previously submitted to

the court. Id. (quotation and brackets omitted). We held this general objection was

insufficient to avoid application of the firm waiver rule. Id. We have nonetheless

declined to apply the firm waiver rule “when the interests of justice so dictate.” Id.

(quotation omitted). But this exception is narrow in counseled cases and does not

involve consideration of the merits of the underlying claims. Key Energy Res., Inc. v.

Merrill (In re Key Energy Res., Inc.), 230 F.3d 1197, 1200 (10th Cir. 2000).

       The Commissioner contends that Moore waived all of his appellate arguments

by failing to file sufficiently specific objections to the magistrate judge’s R&R. As

the Commissioner notes, Moore’s objection to every finding in the R&R that runs

contrary to the points of error he identified in his district court briefs is no more

specific than the objections we held were too general in One Parcel of Real Property.

Moore does not argue otherwise. In fact, he ignores the firm waiver issue in his

opening appeal brief, and he inexplicably states in his reply brief that the

Commissioner’s brief “raises no new issues not already briefed.” Aplt. Reply Br.


                                           -3-
at 2. The Commissioner further asserts that the interests of justice do not excuse

Moore from the bar to appellate review in this case. Again, Moore does not dispute

this contention. Having made no attempt to argue either that his objections were

sufficiently specific, or that the narrow interests-of-justice exception should apply in

this case, Moore has forfeited consideration of these issues on appeal. See Bronson

v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an

opening brief generally forfeits appellate consideration of that issue.”). We therefore

apply the firm waiver rule as a bar to appellate review in this case and dismiss the

appeal. See In re Key Energy Res., 230 F.3d at 1201 (applying firm waiver rule and

dismissing appeal); Theede v. U.S. Dep’t of Labor, 172 F.3d 1262, 1268 (10th Cir.

1999) (same).

      The appeal is DISMISSED.


                                                Entered for the Court


                                                Terrence L. O’Brien
                                                Circuit Judge




                                          -4-
