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

                             FOR THE TENTH CIRCUIT                          July 15, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
JAMES B. SANTOS,

      Plaintiff - Appellant,

v.                                                        No. 14-5156
                                              (D.C. No. 4:14-CV-00015-JED-TLW)
CAROLYN W. COLVIN, Acting                                 (N.D. Okla.)
Commissioner of the Social Security
Administration,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      James B. Santos appeals pro se from a district court order that dismissed his

complaint challenging the agency’s denial of disability insurance benefits (DIB).

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

                                      Background

      Mr. Santos submitted multiple DIB applications over several decades. Only

the two most recent are relevant here.

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      In 1997, Mr. Santos unsuccessfully applied for DIB. In denying the

application, the agency listed Mr. Santos’s date of last insured as December 31, 1986.

He did not request a hearing before an administrative law judge (ALJ), and the

agency’s decision became final.

      In 2012, Mr. Santos filed a DIB application that alleged a disability onset date

in 2004. After his application was denied, Mr. Santos requested a hearing. But an

ALJ dismissed the request, citing res judicata and concluding the 2012 application

raised the same facts and issues as the 1997 application. In reaching that conclusion,

the ALJ found that Mr. Santos was last insured for DIB on March 31, 1985.

      Represented by counsel, Mr. Santos filed suit in federal district court. The

Acting Commissioner moved to dismiss. A magistrate judge concluded res judicata

did not apply because Mr. Santos’s 1997 and 2012 applications were based on

different facts, as they had different dates of disability onset and DIB coverage.

Nevertheless, the magistrate judge found that the erroneous application of res

judicata was harmless because Mr. Santos’s 2004 disability onset date was “well after

any of the previously stated dates last insured” in 1985 and 1986. R., Vol. I at 73

n.5. Thus, the magistrate judge recommended granting the motion to dismiss.

      Mr. Santos did not object. The district court accepted the magistrate judge’s

recommendation and dismissed the case.




                                           2
                                      Discussion1

      “This circuit has adopted a firm waiver rule when a party fails to object to the

findings and recommendations of the magistrate judge.” Casanova v. Ulibarri,

595 F.3d 1120, 1123 (10th Cir. 2010) (brackets and internal quotation marks

omitted). Under this rule, “the failure to make timely objection waives appellate

review of both factual and legal questions.” Id. (ellipsis and internal quotation marks

omitted).

      Mr. Santos seeks to avoid application of the rule because he lost his legal

representation roughly five months before the report and recommendation was issued

and he “was not notified [he] had to object.” Aplt. Reply Br. at 2. Granted, “[t]here

are two exceptions when 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.” Duffield v.

Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (internal quotation marks omitted).

But neither exception applies here.

      As for the first exception, the report and recommendation clearly advised that

“[o]nly a timely specific objection will preserve an issue . . . for appellate review”

and it listed the deadline for filing an objection. R., Vol. I at 74. Mr. Santos does not

assert he failed to receive the report and recommendation. Indeed, as evidenced by

his timely filing a notice of appeal, Mr. Santos received the district court’s decision

      1
        Because Mr. Santos is proceeding pro se, we construe his filings liberally,
but we do not construct arguments or otherwise advocate on his behalf. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
                                            3
accepting the report and recommendation. He has failed to show the first exception

to the firm waiver rule applies.

      Regarding the second exception, “interests of justice,” we typically

“consider[ ] factors such as a pro se litigant’s effort to comply, the force and

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

issues raised.” Duffield, 545 F.3d at 1238 (internal quotation marks omitted).

Mr. Santos does not adequately explain his failure to comply. He indicates he was

representing himself for nearly five months before the magistrate judge issued the

report and recommendation. But even assuming he did not receive the report and

recommendation, he “has failed to identify any efforts he made to obtain the

magistrate’s recommendation after being made aware of its existence” via the district

court’s order accepting it, Theede v. U.S. Dep’t of Labor, 172 F.3d 1262, 1268 (10th

Cir. 1999). Mr. Santos has not addressed the importance-of-the-issues factor.

      Accordingly, Mr. Santos has waived appellate review of the district court’s

decision dismissing his social security complaint.2




      2
        The Acting Commissioner argues that this court “lack[s] jurisdiction to
review a dismissal of a hearing request based on res judicata.” Aplee. Br. at 10.
We need not reach this issue, given that we have resolved this case on the non-merits
ground of the firm waiver rule. See Farrell-Cooper Min. Co. v. U.S. Dep’t of
Interior, 728 F.3d 1229, 1234 (10th Cir. 2013) (noting that “[a] federal court has
leeway to choose among threshold grounds for denying audience to a case on the
merits” (quoting Sinochem Intern. Co. Ltd. v. Malaysia Intern. Shipping Corp.,
549 U.S. 422, 431 (2007))).
                                            4
                               Conclusion

The judgment of the district court is affirmed.

                                    Entered for the Court



                                     Scott M. Matheson, Jr.
                                     Circuit Judge




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