
USCA1 Opinion

	




          December 16, 1992     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1111                                  ANDREW TEMPELMAN,                                Plaintiff, Appellant,                                          v.                            UNITED STATES POSTAL SERVICE,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                     [Hon. Norman H. Stahl, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Andrew Tempelman on brief pro se.            ________________            Jeffrey  R. Howard,  United  States Attorney,  and  Gretchen  Leah            __________________                                  ______________        Witt, Assistant United States Attorney, on brief for appellee.        ____                                 ____________________                                 ____________________                 Per Curiam.  In  September 1988, Andrew Tempelman  was a                 __________            candidate for  the  Republican nomination  for United  States            Representative for the Second District seat in New Hampshire.            On September 6, 8 and 9 of that year, he delivered a total of            125,817  pieces of  campaign literature  to  the Peterborough            Post Office for third-class  mailing to New Hampshire voters.            Contrary to his  expectation, most of  these flyers were  not            delivered prior  to  September 13,  the date  of the  primary            election.  Plaintiff filed  a pro se suit against  the United            States Postal  Service, seeking reimbursement  of his mailing            costs  and other damages for alleged breach of contract.  The            district court,  adopting the report and recommendation (R&R)            of  a magistrate-judge,  dismissed  the case  for failure  to            state a claim,1 and plaintiff now appeals.  We affirm.                 The  R&R, which  issued on  September 10,  1991, advised            plaintiff  that any  objections thereto  had to  be  filed by            September  30.  Plaintiff  filed no such  objections, and the            district court dismissed the  action on October 30, 1991.   A                                            ____________________            1.  While  the  magistrate-judge described  the  complaint as            "frivolous" and  cited to Neitzke  v. Williams, 490  U.S. 319                                      _______     ________            (1989), it is apparent that his recommendation  was not based            on  28 U.S.C.   1915 inasmuch as plaintiff was not proceeding            in forma  pauperis.  Rather,  the recommendation was  one for            __________________            sua  sponte dismissal under Fed.  R. Civ. P.  12(b)(6).  See,            ___________                                              ___            e.g., Street v. Fair, 918 F.2d 269, 272  (1st Cir. 1990) (per            ____  ______    ____            curiam);  Pavilonis v.  King,  626 F.2d  1075, 1078  n.6 (1st                      _________     ____            Cir.) (sua sponte dismissal under Rule 12(b)(6)  appropriate,                   __________            despite  lack  of  notice to  plaintiff,  where  magistrate's            report  had  highlighted  deficiencies in  complaint),  cert.                                                                    _____            denied, 449 U.S. 829 (1980).            ______            docket  entry reading  "case  closed" was  entered that  same            date,  but no separate judgment  was issued.   On November 7,            plaintiff  filed a  motion for  an extension  of time  within            which to file his  objections.  Because the motion  failed to            recite the date to which extension was sought, as required by            local  rules,  a "notice  of  refusal"  was issued  informing            plaintiff that the motion would be treated as if never filed.            On  December 20, 1991,  plaintiff filed a  motion to "reopen"            the  case,  which  the  district court  summarily  denied  on            December  24.    Again,  no  separate  judgment  was  issued.            Plaintiff filed the instant appeal on January 17, 1992.                 We must first  determine what is properly  before us for            review.   Defendant  suggests  that we  have jurisdiction  to            review only the December  24 denial of the motion  to reopen.            It contends that, because the notice of appeal was filed more            than  60 days after the  October 30 order  of dismissal, that            order  is  not  reviewable  on appeal.2    Yet  this argument            overlooks  the  fact  that the  October  30  order  was never            followed by the  entry of  judgment on  a separate  document.                                            ____________________            2.  Defendant  adds that the motion to reopen did not operate            to  toll the  time  for  filing  an  appeal.    That  motion,            defendant  argues, cannot be viewed  as a motion  to alter or            amend judgment under Fed. R. Civ. P. 59(e), since it was  not            served  within ten days of the October 30 order of dismissal;            instead,  it must be viewed  as one for  relief from judgment            under Rule 60(b).   Unlike a Rule 59(e) motion,  a Rule 60(b)            motion  does not  toll  the time  for  appeal or  affect  the            finality  of the underlying judgment.   See, e.g., Browder v.                                                    ___  ____  _______            Director, Illinois  Dep't of  Corrections, 434 U.S.  257, 263            _________________________________________            n.7 (1978); Fed. R. App. P. 4(a)(4).                                          -3-            See Fed. R. Civ. P. 58.  The separate document  rule is to be            ___            applied  "without  exception  to  all  appealable judgments,"            Fiore v.  Washington County Community  Mental Health  Center,            _____     __________________________________________________            960  F.2d 229,  233 (1st  Cir. 1992)  (en banc),  and "should            always  be  interpreted 'to  prevent  loss  of the  right  to            appeal,  not to facilitate loss.'"   Willhauck v. Halpin, 919                                                 _________    ______            F.2d 788, 792 (1st  Cir. 1990) (quoting Bankers Trust  Co. v.                                                    __________________            Mallis,  435 U.S.  381, 386  (1978)).   Given the  lack  of a            ______            separate  judgment here,  the  time for  filing  a notice  of            appeal (or  a postjudgment motion)  "never commenced running"            following  the October  30 order  of  dismissal.   Domegan v.                                                               _______            Ponte, 972 F.2d  401, 405  (1st Cir. 1992);  accord Smith  v.            _____                                        ______ _____            Massachusetts Department  of Correction, 936 F.2d  1390, 1394            _______________________________________            (1st Cir. 1991).  That order is therefore properly subject to            review.3                   This conclusion, however, avails plaintiff little, given            his  failure   to  object  to   the  magistrate-judge's  R&R.                                            ____________________            3.  The fact that no  separate judgment was entered following            the  December  24 denial  of the  motion  to reopen  does not            preclude the instant appeal.   Neither party objected  to the            absence of  a separate document  below, and neither  has been            prejudiced thereby on appeal.  Under these circumstances, "we            deem the parties to have waived the requirements of Rule 58."            Smith, 936 F.2d at  1394; accord, e.g., Domegan, 972  F.2d at            _____                     ______  ____  _______            405-06  ("[A]  notice  of  appeal  deemed  premature  due  to            noncompliance  with  the 'separate  document'  rule does  not            deprive the appellate  court of  subject matter  jurisdiction            ... and the appeal may proceed in the normal course where the            court of  appeals  determines that  the  'separate  document'            requirement was waived by the parties."); Fiore, 960  F.2d at                                                      _____            236  (discussing  circumstances  in  which  waiver  will   be            inferred).                                          -4-            "Failure to raise objections to the Report and Recommendation            waives  the party's right to review in the district court and            those  not  preserved  by  such objection  are  precluded  on            appeal."    Davet v.  Maccarone, 973  F.2d  22, 31  (1st Cir.                        _____     _________            1992); accord,  e.g., Keating v.  Secretary of HHS,  848 F.2d                   ______   ____  _______     ________________            271,  275 (1st Cir. 1988) (per curiam); Park Motor Mart, Inc.                                                    _____________________            v. Ford  Motor Co.,  616 F.2d 603,  605 (1st  Cir. 1980)  ("a               _______________            party 'may' file objections within [the specified time] or he            may not,  as he chooses,  but he 'shall'  do so if  he wishes            further  consideration"); see  also Thomas  v. Arn,  474 U.S.                                      _________ ______     ___            140, 142  (1985)  (upholding power  of  court of  appeals  to            "establish  a rule that the failure to file objections to the            magistrate's report  waives the right to  appeal the district            court's judgment").                 The  Supreme Court  in Thomas  noted that,  "because the                                        ______            rule is a nonjurisdictional  waiver provision," a default may            be excused "in the  interests of justice."  474 U.S.  at 155;            accord, e.g.,  Valencia v. United  States, 923 F.2d  917, 922            ______  ____   ________    ______________            n.5  (1st Cir. 1991).  Yet plaintiff has proffered no reasons            here  that would  justify  any such  leniency.   A  party  is            typically  given ten  days from  the date  of service  within            which  to file objections, see 28 U.S.C.   636(b)(1); the R&R                                       ___            here  afforded  plaintiff  an   additional  week  to  do  so,            specifying  September   30  as  the   deadline.     Plaintiff            acknowledges  having received  the R&R on  September 15--over                                         -5-            two weeks before that deadline.  As required by United States                                                            _____________            v.  Valencia-Copete,  792 F.2d  4,  6  (1st  Cir. 1986)  (per                _______________            curiam), the R&R specifically  warned that "[f]ailure to file            an objection waives the right to appeal the presiding judge's            decision  to the court of appeals."  And the two explanations            offered  by  plaintiff  for  his  failure  to  file a  timely            objection  fall well  short.   First, he  states that  he was            unable  to do  so because  of his  involvement in  an arduous            proceeding in Tax Court  during the month of September.   Yet            we fail to see  how this prevented him from  at least filing,            prior  to  the  September   30  deadline,  a  motion  seeking            permission to file objections late.  See Lyons v. Powell, 838                                                 ___ _____    ______            F.2d  28, 29  n.1 (1st  Cir. 1988)  (per curiam).   Plaintiff            instead waited until  38 days  after the deadline  to file  a            response  (which took  the  form of  a  defective motion  for            extension).    Such  conduct  hardly  justifies  invoking  an            "interests of  justice" exception.   Second, plaintiff argues            that, because the magistrate-judge took five months after the            case was filed to issue his R&R, plaintiff should have had an            equivalent amount  of  time to  file  his objections.    This            contention is commendably creative--but otherwise requires no            response.                   In  Park Motor,  we stated:  "The remedy,  if any,  of a                     __________            dissatisfied party who failed to object should be by way of a            motion for reconsideration disclosing the grounds."  616 F.2d                                         -6-            at  605.   Construed  as such,  plaintiff's motion  to reopen            avails him little; he there addresses the merits of his claim            only in cursory  fashion.  Having reviewed  that motion along            with  the other pleadings in the record, we find nothing that            calls  into   serious  question  the  conclusion  below  that            plaintiff is  claiming the  infringement of a  legal interest            that does  not exist.  The  magistrate-judge examined various            potential bases  for  relief--including breach  of  contract,            estoppel,    the    Federal     Tort    Claims    Act,    and            statutory/regulatory   violations--and   found  each   to  be            wanting.  Plaintiff  on appeal disclaims reliance on  most of            these  theories and rests primarily  on a claim  of breach of            implied contract.   Yet the agency regulations  that he cites            impose no enforceable contractual obligations with respect to            the  time of delivery of third-class mail.4  See, e.g., Rider                                                         ___  ____  _____            v.  USPS, 862 F.2d 239  (9th Cir. 1988) (affirming dismissal,                ____            for  failure to state a  claim, of breach  of contract action            brought  by political  candidate  whose third-class  mailings                                            ____________________            4.  For  example, plaintiff relies on    454.31 of the Postal            Operations Manual, which provides:                 Experience  has  demonstrated clearly  that  if all                 mailers of political material are fully informed of                 postal  requirements--and  assured  of   equal  and                 proper  handling of  their mailings to  bring about                 prompt delivery of  campaign material  in time  for                 the  elections--there   will   be  no   cause   for                 criticism.            Plaintiff's attempt to extract an enforceable obligation from            this language falls well short.                                         -7-            were  not  timely delivered),  cert.  denied,  490 U.S.  1090                                           _____________            (1989).   We therefore think the district court was justified            in denying the motion to reopen.5                   Affirmed.                 ________                                            ____________________            5.  Defendant maintains that, even  if a contract action were            available here, jurisdiction would  lie with the Claims Court            rather than  the district  court since plaintiff  is claiming            damages in excess  of $10,000.   This assertion appears  less            clearcut  than defendant  suggests, see  39 U.S.C.    409(a);                                                ___            compare,  e.g., Westwood  Promotions,  Inc. v.  USPS, 718  F.            _______   ____  ___________________________     ____            Supp.  690, 695  (N.D.  Ill. 1989),  with, e.g.,  Continental                                                 ____  ____   ___________            Cablevision  of St. Paul, Inc.  v. USPS, 945  F.2d 1434, 1440            ______________________________     ____            (8th  Cir. 1991); Jackson v.  USPS, 799 F.2d  1018, 1022 (5th                              _______     ____            Cir. 1986), and we have no occasion to address it here.                                         -8-
