                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         June 8, 2005
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    SENECA NICHOLSON, and a class of
    African American Employees and
    ex-employees of Jefferson County who
    have [been] unfairly treated and/or
    terminated, and a class of probationary
    employees who have been
    disadvantage [sic] in violation of the
    Fair Labor Standards Act by the
    customs and policies of Jefferson
    County, including the failure to pay
    overtime wages owed,                               No. 04-1140
                                                (D.C. No. 02-F-2036 (CBS))
                Plaintiff - Appellant,                  (D. Colo.)

      v.

    JEFFERSON COUNTY; JEFFERSON
    COUNTY DIRECTOR OF
    ADMINISTRATIVE SERVICES;
    JEFFERSON COUNTY
    DEPARTMENT OF HEALTH AND
    ENVIRONMENT, (EPSDT); CHRIS
    SCHMIDT,

                Defendants - Appellees.


                             ORDER AND JUDGMENT         *




*
      This order and judgment is not binding precedent, except under the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.
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.


       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 case is

therefore ordered submitted without oral argument.

       Plaintiff Seneca Nicholson,    1
                                          a former employee of defendant Jefferson

County Department of Health and Environment, appeals from two district court

orders in this suit under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k),

Fair Labor Standards Act, 29 U.S.C. §§ 201-219, and 42 U.S.C. §§ 1981 and

1985. The district court ruled in the first order that defendant Jefferson County

was not a proper defendant and dismissed it from the proceedings. The second

order disposed of the case on the merits, dismissing some claims under

Fed. R. Civ. P. 12(b)(6) and granting summary judgment on the rest. We affirm

for the reasons stated below.

                                     Firm Waiver Rule

       Defendants argue that plaintiff lost her right to challenge the dispositive

orders issued by the district court by failing to file timely objections to the

magistrate judge’s prior recommendations. We agree as to the second order but


1
      Plaintiff initially sought certification for a class action, but this was denied
and the matter has not been pursued on appeal.

                                              -2-
disagree as to the first. Before addressing each specific order, we set out the

general principles that govern the matter.

       A. General Legal Principles

       “Within ten days after being served with a copy [of the proposed findings

and recommendations of a magistrate judge], any party may serve and file written

objections to such proposed findings and recommendations as provided by rules

of court[, and a] judge of the court shall make a de novo determination of those

portions . . . to which objection is made.” 28 U.S.C. § 636(b)(1). The statutory

objection period has significant appellate repercussions: “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) (quotations and

alteration omitted).

       The waiver rule applies to pro se litigants, “so long as they were properly

informed of the consequences of their failure to object.”     Theede v. United States

Dep’t of Labor , 172 F.3d 1262, 1268 (10 th Cir. 1999) (quotation and alteration

omitted); see, e.g., Trierweiler v. Croxton & Trench Holding Corp.      , 90 F.3d 1523,

1533 & n.5 (10 th Cir. 1996); Fottler v. United States , 73 F.3d 1064, 1065 (10 th

Cir. 1996). And a district court’s discretionary election to excuse noncompliance



                                            -3-
with § 636(b)(1) and consider the merits of a matter for purposes of its own

review does not negate the     appellate -waiver consequences of the noncompliance.

Key Energy Res. Inc., 230 F.3d at 1201 n.3 (following    Vega v. Suthers , 195 F.3d

573, 580 (10 th Cir. 1999)).

       The waiver rule is subject to exception “where the interests of justice so

require.” Theede , 172 F.3d at 1268 (quotation omitted). A pro se litigant’s effort

to comply, the force and plausibility of the explanation for her failure to comply,

and the substance of her arguments on the merits are all relevant considerations in

this regard.   See generally Wirsching v. Colorado , 360 F.3d 1191, 1197-98 (10     th

Cir. 2004); Theede , 172 F.3d at 1268.

       B. March 2004 Order

       On March 16, 2004, the magistrate judge recommended that the district

court grant pending motions for dismissal/summary judgment filed by defendants

Jefferson County Department of Health and Environment and Chris Schmidt. The

recommendation was mailed the same day, but not stamped filed until March 18.

Calculated from the date of service,    see 28 U.S.C. § 636(b)(1), and extended by

Fed. R. Civ. P. 6(a) (excluding weekends and holidays from deadlines of ten days

or less) and Fed. R. Civ. P. 6(e) (adding three days when relevant period follows

service by mail), the deadline for objections was April 2, 2004. On that date, the

district court entered an order in which it noted that no objections had been filed,



                                           -4-
reviewed the matter de novo nevertheless, and summarily adopted the magistrate

judge’s recommendation. No objections from plaintiff arrived that day or in the

days that followed. Instead, plaintiff eventually filed this appeal.

      Based on the principles set out above, we conclude that plaintiff has waived

her right to appellate review in connection with this order. The only argument

she advances against application of the waiver rule here is unpersuasive, and no

others appear from the record. She argues, based on the March 18 filing date

stamped on the magistrate judge’s recommendation, that she believed (and still

contends) that the deadline for objections was April 5 and, thus, the order was

premature. Aplt. Opening Br. at 8. Actually, as just noted, the deadline properly

determined from the date of mailing was April 2, the day on which the district

court entered its order. And any argument regarding deadline confusion loses its

force in light of plaintiff’s unexplained failure to file objections when she thought

they were due. Finally, given the thorough, reasoned, and authoritatively

supported analysis set out by the magistrate judge and adopted by the district

court after its de novo review, this is not a case where special concerns about the

merits compel us to overlook the other considerations and excuse plaintiff’s

waiver.




                                         -5-
      C. January 2004 Order

      On January 2, 2004, the magistrate judge recommended granting Jefferson

County’s motion to dismiss, which asserted that Jefferson County Department of

Health and Environment was plaintiff’s employer and that the two entities were

legally distinct. The recommendation was filed and served by mail three days

later. On January 20, 2004, the district court issued an order noting that no

objections to the magistrate judge’s recommendation had been filed, reviewing

the matter de novo nonetheless, and summarily adopting the recommendation to

dismiss Jefferson County from the case.

      In this instance, the district court did act prematurely. Measured from the

date of service and extended by the pertinent provisions of Rule 6, plaintiff had

until January 23 to file objections. More importantly, plaintiff may have received

the district court’s order granting Jefferson County’s motion to dismiss before the

time for objection expired, in which event she would understandably have been

deterred from filing objections in light of their evident futility. Under these

circumstances, we deem it appropriate to resolve plaintiff’s appeal on the merits.

                  Review of January 2004 Order on the Merits

      The district court adopted the magistrate judge’s recommendation to

dismiss Jefferson County from the case because it is an entity distinct from

plaintiff’s employer and, thus, was not a proper defendant here. We agree.



                                          -6-
       Plaintiff’s claims relate to her employment with the Jefferson County

Department of Health and Environment (JCDHE). The JCDHE is “a political

subdivision of the state with its own statutory rights and mandate” and, as such,

“is a legal entity, separate and distinct from the board of county commissioners

[i.e., from Jefferson County   2
                                   ].” Jefferson County Health Servs. Ass’n v. Feeney      ,

974 P.2d 1001, 1004 (Colo. 1998) (en banc). Under the governing statutory

scheme, a county board of health appoints a public health administrator who, as

executive and administrative head of the department, is responsible for hiring,

compensating, and directing department personnel consistent with policies set by

the board of health.   See Colo. Rev. Stat. § 25-1-505(1), (3).       See generally id.

§§ 25-1-501 to 516. In    Feeney , the Colorado Supreme Court underscored the

independent legal status of the county board of health by holding that when suit is

brought on a claim against the county health department, the notice requirements

of the state governmental immunity act are not satisfied by sending a notice to the

board of county commissioners, but only by sending a notice to the county board

of health, since “the county board of health, not the board of county

commissioners, is the governing body of a county health department.”            Feeney ,

974 P.2d at 1002.


2
       Under Colo. Rev. Stat. § 30-11-105, actions against the county are brought
against the county board of commissioners.  See Calahan v. Jefferson County , 429
P.2d 301, 302 (Colo. 1967) (applying predecessor statute).

                                               -7-
      Plaintiff points out that JCDHE follows personnel rules drafted by the

Jefferson County commissioners. But that is only because the board of health

overseeing JCDHE elected to adopt those rules, and such election did not, indeed

could not, effect a relinquishment of its authority over personnel matters to the

county commissioners.    See Johnson v. Jefferson County Bd. of Health    , 662 P.2d

463, 467, 471 (Colo. 1983) (en banc) (noting JCDHE’s adoption of county

personnel rules but holding this did not override health board’s statutory authority

over employment of its administrator, because “[a] county board of health, as a

political subdivision of the state, may not by rule or regulation abdicate the

authority and responsibility delegated to it by the legislature”). Plaintiff also

notes that her wages were paid by checks issued by the county treasurer, but this

likewise does not undermine the district court’s analysis. By statute, the county

treasurer also serves as treasurer of the county health department, Colo. Rev. Stat.

§ 25-1-505(2), and, in the latter role, the treasurer’s issuance of checks to the

department’s employees is entirely consistent with the department’s statutory

responsibility over its own personnel matters.

      This court has emphasized the importance of legislative delineations of

administrative responsibility and rejected efforts to extend Title VII liability

beyond the plaintiff’s direct governmental employer, “since such [an extension]

effectively negates what we assume was a state’s conscious choice to create



                                          -8-
distinct organizations.”   Sandoval v. City of Boulder , 388 F.3d 1312, 1323 n.3

(10th Cir. 2004); see also Bristol v. Bd. of County Comm’rs    , 312 F.3d 1213, 1219

(10th Cir. 2002). “Absent some indication that the state’s decision was motivated

by a desire to circumvent the civil rights laws or other laws, principles of comity

counsel federal courts not to be too quick to erase organizational dividing lines

drawn up by state authorities.”   Sandoval , 388 F.3d at 1323 n.3. The district court

properly accorded due effect to the organizational scheme drawn up by the state

legislature here.

                              Motions to Dismiss Appeal

       Before briefing this appeal, defendants moved for summary dismissal on

two grounds, neither of which is cognizable under our local rules. Motions for

summary disposition are limited to: “(a) a motion to dismiss the entire case for

lack of appellate jurisdiction; (b) a motion for summary disposition because of a

supervening change of law or mootness; or (c) a motion to remand for additional

trial court or administrative proceedings.” 10    th Cir. R. 27.2(A)(1). Defendants’

motions for dismissal, based on the waiver rule discussed above and on plaintiff’s

delay in seeking leave to proceed in forma pauperis, do not fall into any of the

designated categories. Such non-jurisdictional deficiencies relating to the merits

or to matters of procedure are not proper grounds for summary disposition.      See,

e.g. , Joseph A. ex rel. Wolfe v. N.M. Dep’t of Human Servs.    , 28 F.3d 1056, 1059



                                            -9-
(10 th Cir. 1994); Braley v. Campbell , 832 F.2d 1504, 1509 (10 th Cir. 1987).

Defendants’ motions are, therefore, denied.

      The judgment of the district court is AFFIRMED. Defendants’ motions for

summary dismissal are DENIED. Plaintiff’s motion to proceed in forma pauperis

is GRANTED. The mandate shall issue forthwith.

                                                   Entered for the Court



                                                   Mary Beck Briscoe
                                                   Circuit Judge




                                        -10-
