          United States Court of Appeals
                     For the First Circuit


No. 15-1782

                     WILMARY SANTOS-SANTOS,

                     Plaintiff, Appellant,

                               v.

                REYNALDO TORRES-CENTENO, ET AL.,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

     [Hon. Pedro A. Delgado-Hernández, U.S. District Judge]


                             Before

                    Lynch, Selya, and Lipez,
                         Circuit Judges.


     Eric C. Marion, with whom Law Office of Eric Marion was on
brief, for appellant.
     Michelle Camacho-Nieves, Assistant Solicitor General of
Puerto Rico, with whom Margarita L. Mercado-Echegaray, Solicitor
General of Puerto Rico, was on brief, for appellee.



                       November 23, 2016
          LIPEZ, Circuit Judge.            Appellant Wilmary Santos-Santos

("Santos"), an officer with the Puerto Rico Police Department

("PRPD"), filed this employment discrimination case against the

Commonwealth    of   Puerto   Rico,    the   PRPD,   and   a   number   of    her

coworkers under various federal and Puerto Rico statutes.               Santos

alleges that she was transferred against her wishes to a different

department within the PRPD after she co-signed a sexual harassment

complaint against a coworker, acted as a witness in a separate

investigation of that coworker, and filed an unrelated complaint

regarding the misuse of police property by her superiors.               Santos

sought compensatory and punitive damages, as well as an injunction

barring the PRPD from further discrimination.

          The district court granted summary judgment for the

defendants on all of Santos's claims in two rulings in August 2012

and November 2014.      On appeal, Santos attempts to challenge both

entries of summary judgment.          Because Santos failed to adhere to

procedural     requirements    relating      to   the   dispositions     of     a

magistrate judge as set forth by Federal Rule of Civil Procedure

72(b) and Puerto Rico Local Rule 72(d), we affirm the district

court's decisions without reaching the merits of Santos's claims.

                                      I.

          We recount in detail the complicated procedural history

of this case because it is determinative of the appeal. Santos

filed this action in January 2011. While several discovery motions


                                  - 2 -
were pending before the district court, the defendants moved for

summary judgment.   Instead of filing a standard opposition to the

defendants' summary judgment motion, Santos, citing Rule 56(d) of

the Federal Rules of Civil Procedure, filed a response asserting

that she still required certain documents that were among her

discovery requests to effectively counter the defendants' motion.

In August 2012 the district court granted summary judgment in favor

of defendants on nearly all of Santos's claims,1 finding that her

attempted reliance on pending discovery related only to her First

Amendment claim -- which the court dismissed for failing to state

a claim upon which relief could be granted under Garcetti v.

Ceballos, 547 U.S. 410 (2006).2   Only Santos's retaliation claims

under Title VII and Law 115 survived, and the court instructed

Santos to file her opposition to the summary judgment motion on

these issues.




     1 Santos's principal claims alleged violations of her free
speech rights under the First Amendment, retaliation under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17,
and retaliation under Act No. 115 of December 20, 1990, P.R. Laws
Ann. tit. 29, §§ 194-194b ("Law 115").       She also alleged a
conspiracy among her employer and coworkers to interfere with her
civil rights under 42 U.S.C. § 1985, along with a number of other
violations of federal and Puerto Rico laws.
     2 The court found that Santos failed to demonstrate that any
of her comments for which she alleged retaliation in violation of
the First Amendment were made while speaking in her capacity as a
private citizen, which Garcetti requires. See 547 U.S. at 418.


                               - 3 -
          After    Santos   filed    her    opposition   memorandum,   the

district court dismissed her Title VII retaliation claims against

individual defendants Gregorio Merced-Vázquez, Reynaldo Torres-

Centeno, William Ruiz-Borrás, and Miguel Santiago-Rivera, and her

Law 115 claim against William Ruiz-Borrás.           At that point, the

surviving claims consisted of Santos's Title VII claims against

the Commonwealth of Puerto Rico and the PRPD and her Law 115 claims

against the Commonwealth of Puerto Rico, the PRPD, Merced-Vázquez,

Torres-Centeno, and Santiago-Rivera.

          Defendants next filed a motion for reconsideration,

asking the court to dismiss the case in its entirety, which the

court denied.     While the defendants' motion for reconsideration

was pending, Santos sought interlocutory review in this court of

the order dismissing her other claims.         We concluded that we did

not have jurisdiction to hear her appeal at that time, dismissed

the interlocutory appeal without prejudice, and returned the case

to the district court.

          Discovery thus proceeded as the case moved toward trial.

In June 2014, however, defendants filed a second motion for summary

judgment on the remaining claims in light of the Supreme Court's

decision in University of Texas Southwestern Medical Center v.

Nassar, 133 S. Ct. 2517 (2013).3       Santos filed her opposition, and


     3 Nassar held that Title VII retaliation claims require the
more stringent "but-for" causation standard of proof rather than


                                    - 4 -
the   court    referred      the    matter   to        a    magistrate        judge,      who

recommended that the motion be granted.                     Santos did not file an

objection to the magistrate judge's report and recommendation

within the fourteen-day deadline prescribed by Federal Rule of

Civil Procedure 72(b) and Puerto Rico Local Rule 72(d).                                   On

November 20, 2014, the district judge adopted the magistrate

judge's    report    and     recommendation       in       full   and    entered      final

judgment    dismissing       Santos's    claims    with       prejudice.             In   its

dismissal order the court noted that "[a]bsent objection . . . [a]

district court ha[s] a right to assume that [the affected party]

agree[s] with the magistrate judge's recommendation" and that the

court "needs only [to] satisfy itself by ascertaining that there

is no 'plain error' on the face of the record."                     Santos-Santos v.

P. R. Police Dep't., 63 F. Supp. 3d 181, 184 (D.P.R. 2014) (quoting

Lopez-Mulero v. Velez-Colon, 490 F. Supp. 2d 214, 217-18 (D.P.R.

2007)).

              On the same day that final judgment was entered, Santos

responded     by    filing    a    "Motion   to    Reconsider           and    Set     Aside

Memorandum and Order as Well as Judgment."                   Santos complained that

her lawyer was out of the jurisdiction when the magistrate judge

posted his report and recommendation and, hence, did not see that



the more lenient "mixed-motive" causation standard permitted in
Title VII discrimination claims grounded in race, color, religion,
sex, or national origin. See 133 S. Ct. at 2534.


                                        - 5 -
it had been issued until final judgment was entered.       She also

asserted that because there was no docket entry informing parties

of the motion's referral, her lawyer was never aware that it had

been assigned to a magistrate judge.    Santos asked the court to

set aside its judgment dismissing her case and requested that she

be given an opportunity to object to the report and recommendation.

          The district court chose to view Santos's motion as a

"request for reconsideration," but it responded by cautioning

Santos as follows in an electronic docket order entered the

following day:

          [T]he fact that a formal referral was not
          entered in this case is immaterial, since the
          record confirms that (i) the Report and
          Recommendation was notified to [Santos's
          attorney's] email address of record; (ii) it
          included a warning that failure to file
          specific objections within fourteen days would
          constitute a waiver of the right to appellate
          review . . . and (iii) as per [Santos's
          attorney's] admission, the lack of referral
          was not the reason behind his untimely request
          to "closely review, analyze and object" [to]
          the Report and Recommendation. . . . To the
          contrary, [Santos's attorney] admits that, due
          to    numerous    professional    commitments,
          yesterday, for the first time, he saw the
          Report and Recommendation because he "never
          checked the docket until today when the CM/ECF
          e-mails [were] received."       . . . This
          contention cannot serve as [the] basis for
          reconsideration of the order. See[] Santiago-
          Diaz v. Laboratorio Clinico y de Referencia
          del Este and Sara L[ó]pez MD, 456 F.3d 272,
          276 n.3 (1st Cir. 2006) (A party is "fully
          chargeable with knowledge of what the docket
          disclosed.").     The Court, however, will
          consider the memorandum of law in support of


                              - 6 -
          her request for reconsideration it has
          authorized to be filed before making a final
          determination in this case.

          Santos subsequently filed her memorandum in support of

her motion for reconsideration on December 16, 2014, attaching an

additional motion asking the district court to extend the original

period for filing objections to the magistrate judge's report and

recommendation.4   She argued that reconsideration was appropriate

due to the excusable neglect of her attorney -- claiming for the

first time that notification of the magistrate judge's issuance of

the report and recommendation had ended up in her attorney's email

"spam folder."

          The    court   accepted    Santos's   memorandum   of   law   and

permitted her to file the additional motion on December 17, 2014,

but it advised her in an electronic docket order that it would

treat the additional motion as part of her original motion for

reconsideration.    Defendants opposed Santos's motion, asserting

that it was improper because it did not "seek[] to correct manifest

errors of law, present newly discovered evidence, or [assert] an

intervening change in law" -- the recognized bases for a motion to

alter or amend a judgment under Federal Rule of Civil Procedure


     4 Santos also submitted her proposed objections. In her
proposed objections she challenged the magistrate judge's findings
on the but-for causation standard of proof required for her Title
VII retaliation claims, but she also attempted to relitigate the
claims that the court had dismissed two years earlier in its first
summary judgment order.


                                    - 7 -
59(e).5   See, e.g., Prescott v. Higgins, 538 F.3d 32, 45 (1st Cir.

2008).    In a reply memorandum, Santos argued that her proposed

objections to the magistrate judge's report and recommendation --

describing an alleged manifest error of law or fact in the court's

adoption of the magistrate judge's report and recommendation --

and the excusable neglect of her attorney were sufficient to unwind

the judgment. Defendants filed a final "Informative Motion," again

urging the district court to reject Santos's argument on the ground

that she failed to meet the standard for a motion to reconsider.

           On   June   10,   2015,    the    district   court   entered   an

electronic order denying Santos's motion for reconsideration:

           The Court has carefully re-examined the
           arguments raised by plaintiff in support of
           her motion for reconsideration at Docket No.
           160 and finds no reason to deviate from its
           prior ruling, after adopting the Report and
           Recommendation. In her motion, plaintiff does
           not direct to any newly discovered evidence or
           an intervening change in the law; and has not
           shown that the Court's order was clearly
           unjust or based on a manifest error of law.
           Rather, she insists and elaborates upon her
           previous arguments and even asks the court to
           reconsider an order entered more than two (2)
           years ago. The court declines plaintiff's
           invitation.    As such, and absent a valid

     5 Santos's motion to reconsider did not reference any Federal
Rule of Civil Procedure, but it appears that defendants assumed
Santos's motion was a Rule 59(e) motion to amend or alter a
judgment. Santos, herself, adopted this framework in her reply to
the defendants' response. However, Santos was not asking the court
to amend or alter its judgment, but in fact to vacate the judgment
based on her attorney's excusable neglect. Hence, as we explain
below, the motion is properly characterized as a Rule 60(b) motion
for relief from a judgment or order.


                                     - 8 -
          ground   for   reconsidering   the   previous
          disposition,    plaintiff's     motion    for
          reconsideration at Docket No. 160 is DENIED.

Santos then timely filed a notice of appeal, asking this court to

review "the Judgment entered November 20, 2014, tolled by her

Motion filed December 17, 2014 which was denied on June 10, 2015."6

          On appeal, Santos contends that the district court erred

when it granted summary judgment for defendants on her First

Amendment claims in its August 2012 order and when it granted

summary judgment for defendants on her Title VII and Law 115 claims

in November 2014.

                                II.

          Summary judgment is proper when "there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(a); Conjugal

P'ship Acevedo-Principe v. United States, 768 F.3d 51, 54 (1st

Cir. 2014).   In a typical appeal from a district court's grant of


     6 Federal Rule of Appellate Procedure 4(a)(1)(A) typically
requires that a notice of appeal be filed in the district court
within 30 days after the entry of the judgment which the party
wishes to appeal. However, as we note below, Santos's motion for
reconsideration constituted a Rule 60(b) motion for relief from a
judgment. When a party files any Rule 60 motion within 28 days of
the entry of judgment -- as Santos did in this case -- the time to
file an appeal runs from the entry of the order disposing of the
Rule 60 motion.   See Fed. R. App. P. 4(a)(4)(A)(vi).      (Because
Santos's December 17, 2014 motion was filed within 28 days of entry
of final judgment, we need not decide whether the appropriate date
to ascribe to her motion for reconsideration for purposes of
Appellate Rule 4(a)(4)(A)(vi) was the date of her initial November
20, 2014 motion or her December 17, 2014 follow-up motion.)


                               - 9 -
summary judgment, our review is de novo, and we view the facts in

the light most favorable to the non-moving party -- in this case

Santos.    Del Valle-Santana v. Servicios Legales de P.R. Inc., 804

F.3d 127, 129 (1st Cir. 2015).

            But   this   is   not   a   typical   appeal.    Our   review   is

contingent on a party's compliance with procedural rules that

prescribe how issues may be preserved for appeal.             Under Federal

Rule of Civil Procedure 72(b) and Puerto Rico Local Rule 72(d), a

party who wishes to challenge a magistrate judge's report and

recommendation must file written objections within fourteen days.

Likewise, it has long been the rule in this circuit that under the

provisions of the Federal Magistrates Act, 28 U.S.C. § 636(b),

parties who fail to file objections to a magistrate judge's report

and recommendation lose their right to appellate review.                Park

Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.

1980) ("We conclude that a party 'may' file objections within [the

statutorily prescribed number of] days or he may not, as he

chooses,    but    he    'shall'        do   so   if   he   wishes   further

consideration."); see also Sch. Union No. 37 v. United Nat'l Ins.

Co., 617 F.3d 554, 564 (1st Cir. 2010) ("[O]nly those issues fairly

raised by the objections to the magistrate's report are subject to

review in the district court and those not preserved by such




                                    - 10 -
objection are precluded on appeal." (quoting Keating v. Sec'y of

Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988))).7

              As noted above, Santos failed to object to the magistrate

judge's report and recommendation.            The magistrate judge warned

her that "[f]ailure to comply with [Puerto Rico Local Rule 72(d)]

precludes further appellate review."            Santos's failure to comply

with this rule bars us from examining the merits of her appeal.

              After entry of final judgment, Santos filed a motion for

reconsideration, asking the district court to reopen the suit and

providing     the   objections   that   she   would     have    lodged   to   the

magistrate's report and recommendation if she had not missed the

deadline set forth by Federal Rule of Civil Procedure 72(b) and

Puerto Rico Local Rule 72(d).           Santos's motion stated that she

would not have missed the deadline but for her attorney's excusable

neglect in failing to realize that the report and recommendation

had been issued.       "Excusable neglect" is listed as one of the

specific bases for "grounds for relief from a final judgment,

order,   or    proceeding"   under    Federal    Rule   of     Civil   Procedure


     7 The Supreme Court has upheld the application of this rule.
See Thomas v. Arn, 474 U.S. 140, 155 (1985) ("[A] court of appeals
may adopt a rule conditioning appeal, when taken from a district
court judgment that adopts a magistrate's recommendation, upon the
filing of objections with the district court identifying those
issues on which further review is desired. Such a rule, at least
when it incorporates clear notice to the litigants and an
opportunity to seek an extension of time for filing objections is
a valid exercise of the supervisory power that does not violate
either the Federal Magistrates Act or the Constitution.").


                                     - 11 -
60(b)(1).     Although Santos never cited the rule in her motion to

reconsider, her motion is properly characterized as a Rule 60(b)

motion for relief from the judgment.8     Cf. United States v. $23,000

in United States Currency, 356 F.3d 157, 165 & n.9 (1st Cir. 2004)

(distinguishing a Rule 59(e) motion to modify a judgment from a

Rule 60(b) motion to vacate a judgment).      Demonstrating excusable

neglect is a "demanding standard."       Id. at 164.   The trial judge

"has wide discretion" in this arena, and "we will not meddle unless

we are persuaded that some exceptional justification exists."      Id.

at 164-65.    Such an "exceptional justification" must be something

more than an attorney's failure to monitor the court's electronic

docket.      "Unfortunately for [Santos,] routine carelessness by

counsel leading to a late filing is not enough to constitute

excusable neglect."    Negron v. Celebrity Cruises, Inc., 316 F.3d

60, 62 (1st Cir. 2003).       The district court acted within its

discretion when it denied Santos's motion for reconsideration.

                                 III.

             In her brief Santos urges us to consider her First

Amendment claim that was dismissed by the district court in August


     8 In its denial of Santos's motion for reconsideration, the
district court employed the framework of a Rule 59(e) motion, which
was introduced by defendants in their opposition to Santos's motion
and adopted by Santos, herself, in her reply.       But as we have
noted, vacating a judgment on the ground of excusable neglect by
one party's attorney is governed by Rule 60(b), not Rule 59(e).
Hence, we analyze whether the district court's denial of Santos's
motion for reconsideration was proper under Rule (60)(b).


                                - 12 -
2012.   Her notice of appeal, however, refers only to the district

court's November 2014 decision to accept the magistrate judge's

report and recommendation on her remaining Title VII and Law 115

claims and its denial of her motion to reconsider the entry of

final judgment. "Even though notices of appeal are to be liberally

construed,    if    the    appellant     'chooses    to    designate     specific

determinations in [her] notice of appeal -- rather than simply

appealing from the entire judgment -- only the specified issues

may be raised on the appeal.'"             Brooks v. AIG SunAmerica Life

Assurance    Co.,    438   F.3d   579,    585   (1st      Cir.   2007)   (quoting

Constructora Andrade Gutiérrez, S.A. v. Am. Int'l. Ins. Co. of

P.R., 467 F.3d 38, 43 (1st Cir. 2006)).             By expressly asking us to

review specific decisions of the district court to the exclusion

of all other district court decisions, Santos gave neither this

court nor appellees proper notice that she intended to dispute the

earlier ruling on her First Amendment claim, leaving us without

jurisdiction to review it.         See Constructora Andrade Gutiérrez,

467   F.3d   at    44.     "[D]esignating       a   completely     separate   and

independent order loudly proclaims [a] plaintiff's intention not

to appeal from the former order. . . . As an ancient maxim teaches,

'expressio unius est exclusio alterius.'"              Kotler v. Am. Tobacco

Co., 981 F.2d 7, 11 (1st Cir. 1992) (citation omitted).

             Affirmed.




                                   - 13 -
