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

                                    TENTH CIRCUIT                          August 25, 2011

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 DANIEL BAGWELL,

        Plaintiff - Appellant,

 v.                                                          No. 11-1267
                                                (D.C. No. 1:11-CV-00162-WYD-KMT)
 SAFEWAY DENVER MILK PLANT,                                   (D. Colo.)

        Defendant - Appellee.


                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


       In January 2011, Daniel Bagwell filed a pro se complaint in the United States

District Court for the District of Colorado against his former employer, Safeway Denver

Milk Plant (“Safeway”). In his complaint, Mr. Bagwell asserted claims for sex

discrimination and retaliation under Title VII of the Civil Rights Act of 1964. Mr.

Bagwell included only two factual assertions in his complaint—that (1) his “hours

       *After examining appellant=s brief and the 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) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
changed,” and (2) he experienced “career-ending performance evaluations.” Safeway

filed a motion to dismiss, arguing that Mr. Bagwell’s complaint did not comply with

Rules 8(a)(2)1 and 12(b)(6)2 of the Federal Rules of Civil Procedure. Mr. Bagwell did

not respond to the motion.

       The district court referred Safeway’s motion to a magistrate judge, who

recommended granting the motion. In support of this recommendation, the magistrate

judge stated that Mr. Bagwell “ha[d] failed to allege facts sufficient to maintain a claim

for sex discrimination.” Bagwell v. Safeway Denver Milk Plant, No. 11-cv-00162-WYD-

KMT, 2011 WL 2144632, at *4 (D. Colo. May 12, 2011) (“Bagwell I”). She also stated

that even when construed liberally, Mr. Bagwell’s complaint contained “absolutely no

factual allegations to support an inference that [his] termination was in any way because

of or due to his gender.” Id. at *5. Finally, the magistrate judge stated that Mr.

Bagwell’s complaint was “entirely devoid of sufficient facts to state a claim for

retaliation.” Id.

       Mr. Bagwell was required to file any objections to the Recommendation within

fourteen days. He received notice that “a party’s objections to [a] magistrate judge’s . . .

recommendation must be both timely and specific” and that failure to satisfy those


       1
          Rule 8(a)(2) provides that “[a] pleading that states a claim for relief must contain
. . . a short and plain statement of the claim showing that the pleader is entitled to relief.”
       2
       Rule 12(b)(6) requires that a complaint “state a claim upon which relief can be
granted.”

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requirements would result in waiver of de novo review by a district or appellate court. Id.

at 90 (citing United States v. 2121 East 30th Street, 73 F.3d 1057, 1059-60 (10th Cir.

1996)).

       Eight days after receiving the Recommendation, Mr. Bagwell filed a document

labeled “Written Objections.” In the document, Mr. Bagwell did not object to any of the

magistrate judge’s specific findings or recommendations. Instead, he requested that his

“case be reviewed by the Supreme Court of the United States of America on the grounds

that Title VII is unconstitutional and violates [his] civil rights.” ROA, Vol. 1, at 92. The

district court reviewed Mr. Bagwell’s “Written Objections” and issued an order affirming

and adopting the magistrate judge’s recommendation. Bagwell v. Safeway Denver Milk

Plant, No. 11-cv-00162-WYD-KMT, 2011 WL 2135357 (D. Colo. May 31, 2011).

       In its order, the district court noted that timely written objections to a magistrate

judge’s recommendation generally necessitate de novo review. But the district court

concluded that Mr. Bagwell had “waived de novo review” because he “did not object to

any of the [magistrate judge’s] specified proposed findings or recommendations.” Id. at

*2. Additionally, the district court noted that “even under a de novo review,” it would

affirm the magistrate judge’s “thorough and well-reasoned” recommendations. Id. In the

instant appeal, Mr. Bagwell challenges the district court’s order dismissing his claims.

       As the district court noted in its order, this circuit has “adopted a firm waiver rule

when a party fails to object to the findings and recommendations of [a] magistrate

[judge].” Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). Under the firm
                                             -3-
waiver rule, failure to make timely and sufficiently specific objections to a magistrate

judge’s “findings or recommendations waives appellate review of both factual and legal

questions.” Id.; see also 2121 East 30th Street, 73 F.3d at 1060 (“[A] party’s objections

to the magistrate judge’s report and recommendation must be both timely and specific to

preserve an issue for de novo review by the district court or for appellate review.”). The

firm waiver rule does not apply: “when (1) a pro se litigant has not been informed of the

time period for objecting and the consequences of failing to object, or when (2) the

‘interests of justice’ require review.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119

(10th Cir. 2005).

       Even when construed liberally, Mr. Bagwell’s pro se brief to this court does not

address the firm waiver rule or argue that either of its exceptions applies in this case. See

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) (noting that “we . . .

liberally construe pro se pleadings”). Notwithstanding this lack of argument, we have

conducted a thorough review of the record and conclude that neither exception applies

here. The first exception does not apply because the magistrate judge expressly informed

Mr. Bagwell of the time period for objecting, the need to object with sufficient

specificity, and the consequences of failing to do either.

       The interests of justice exception does not apply because Mr. Bagwell does not

challenge any of the magistrate judge’s recommendations in his brief to this court and

because our review of the record does not indicate that reversal is necessary or warranted.

“Among the factors this court has considered in determining whether to invoke the
                                             -4-
interests-of-justice exception are (1) a pro se litigant’s efforts to comply, (2) the force and

plausibility of the explanation for his failure to comply, and (3) the importance of the

issues raised.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010) (quotations

omitted). We have previously stated that determining the importance of the issues raised

by a litigant is similar to plain error review in that it “expressly includes review of a

litigant’s unobjected-to substantive claims on the merits.” Duffield v. Jackson, 545 F.3d

1234, 1238 (10th Cir. 2008) (quotations omitted). Plain error is “(1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (quotations omitted).

       All of the factors considered in our interests of justice exception weigh against Mr.

Bagwell. First, Mr. Bagwell made no effort in his “Written Objections” to specifically

challenge or object to any of the magistrate judge’s findings or recommendations.

Second, Mr. Bagwell has offered no explanation for his failure to comply with the

requirement that all objections be sufficiently specific “to focus the district court’s

attention on the factual and legal issues that are truly in dispute.” 2121 East 30th Street,

73 F.3d at 1060. Finally, after reviewing the record, we see no basis for suspending the

firm waiver rule for plain error.

       In his Complaint, Mr. Bagwell asserted claims for sex discrimination and

retaliation. The magistrate judge concluded that he had not stated a valid sex

discrimination claim because his complaint contained “absolutely no factual allegations

to support an inference that [his] termination was in any way because of or due to his
                                              -5-
gender.” Bagwell I, 2011 WL 2144632, at *5. She also stated that Mr. Bagwell’s

Complaint was “entirely devoid of sufficient facts to state a claim for retaliation.” Id. On

appeal, Mr. Bagwell does not challenge either of these conclusions, and nothing in our

review indicates that the magistrate or district court committed an error warranting

reversal. In sum, neither Mr. Bagwell’s arguments on appeal, nor any material in the

record, convinces us that application of the firm waiver rule in this case would be

contrary to the interests of justice.

       We therefore hold that Mr. Bagwell waived appellate review by failing to file

specific objections to the magistrate judge’s recommendation. We AFFIRM the

judgment of the district court and DISMISS this matter.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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