Susan M. Smith v. Commissioner, Ssa

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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SUSAN M. SMITH,
Plaintiff - Appellant,
v.
COMMISSIONER, SSA,
Defendant - Appellee.
No. 20-6144
(D.C. No. 5:20-CV-00124-SM)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BALDOCK, and KELLY, Circuit Judges.
_________________________________
Susan M. Smith sought review in the district court of the Commissioner’s
decision that she was not disabled under the Social Security Act. 1 On the magistrate
judge’s recommendation, the district court dismissed the action. Smith asks us to
reverse the district court’s judgment. But she waived appellate review because she
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
1 Smith represents herself. For that reason, we construe her filings liberally
without going so far that we take on the role of her advocate. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
FILED
United States Court of Appeals
Tenth Circuit
April 27, 2021
Christopher M. Wolpert
Clerk of Court
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did not object to the magistrate judge’s report and recommendation. We therefore
dismiss this appeal.
I. Background
Smith applied for disability benefits. An administrative law judge decided that
she was not disabled under the Social Security Act, however, and that decision
became the Commissioner’s final decision.
In 2019, Smith filed an action seeking judicial review of the Commissioner’s
decision. The district court affirmed. Although Smith filed an appeal of the district
court’s ruling, she later withdrew the appeal.
In 2020, Smith filed the action underlying this appeal, again seeking review of
the Commissioner’s decision. Because Smith had already challenged the
Commissioner’s decision, the magistrate judge recommended dismissal under the
doctrine of res judicata, a doctrine preventing “a party from relitigating a legal claim
that was or could have been the subject of a previously issued final judgment.”
MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005). The magistrate
judge’s report and recommendation set a deadline for the parties to object to it and
informed them that the failure to object “waives the right to appellate review of both
factual and legal issues.” R. at 114. Smith did not object. After the objection
deadline passed, the district court adopted the report and recommendation, and it
dismissed the action.
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II. Discussion
Our firm-waiver rule holds that a party who does not object to a magistrate
judge’s recommendation “waives appellate review of both factual and legal
questions.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). The
rule has two exceptions. First, it does not apply if a pro se litigant has not been
advised of the objection deadline and the consequences of failing to object. Id.
Second, we will exercise our discretion to overlook the rule if the interests of justice
require review. Id.
The first exception does not apply here. The magistrate judge’s report and
recommendation clearly informed Smith of the objection deadline and the
consequences of failing to object.
We turn, then, to the second exception, focusing on the interests of justice.
Several factors help us to evaluate those interests, including “a pro se litigant’s effort
to comply, the force and plausibility of the explanation for [her] failure to comply,
and the importance of the issues raised.” Id. at 1120 (italics omitted). In many ways,
assessing the importance of the issues “is similar to reviewing for plain error,” a
standard requiring an appellant “to show (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.” Duffield v. Jackson, 545 F.3d 1234, 1238
(10th Cir. 2008) (internal quotation marks omitted).
Smith’s efforts to comply cut both ways. On the one hand, we do not doubt
that her failure to object was, as she says, an “honest error.” Aplt. Resp. to Show
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Cause Order at 1. On the other hand, she does not claim that she made any effort to
object. All in all, this factor is neutral.
Smith’s explanation for her failure to object is not plausible, however. She
tells us that her failure to object stemmed from her severe mental disability and
mental stress. This explanation lacks force because, despite any challenges she faces,
she has been able to comply with several other procedural requirements as she
pursued disability benefits. She says herself that she has complied with all other
court orders. Given this history of compliance, we are not persuaded that a mental
disability or stress prevented her from objecting to the report and recommendation.
The importance of the issues raised favors enforcing the firm-waiver rule. For
one thing, Smith has already challenged the Commissioner’s decision in a prior
action. And for another, she has not shown any error, let alone plain error, in the
magistrate judge’s analysis. Smith alleges three errors in the conclusion that this
action is barred by res judicata. First, she says that her 2019 action did not end in a
final judgment. The record refutes this statement. Second, she says that she did not
have a full and fair opportunity to litigate her claim in the 2019 action. But she fails
to identify any specific circumstance that deprived her of such an opportunity. Third,
she seems to argue that this action presents a “new and different claim.” Aplt.
Opening Br. at 4. Yet this action and the 2019 action challenged the same decision
that she was not disabled.
Smith asserts that enforcing the firm-waiver rule will violate her rights under
the Fourteenth Amendment and the Americans with Disabilities Act. But she does
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not support this assertion with argument or legal authority. Although we must
construe her filings liberally, we will not take on responsibility for constructing
arguments for her. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). So we do not consider this assertion.
On balance, the interests of justice do not suggest that we should overlook the
firm-waiver rule.
III. Conclusion
Smith waived appellate review because she did not object to the magistrate
judge’s report and recommendation. We therefore dismiss this appeal.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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