Thomas D. Powell v. United States Bureau of Prisons

SENTELLE, Circuit Judge,

dissenting:

While I agree with the majority that the Bureau of Prison’s recent release of chapters two and three of the CIM Manual is relevant to a factual evaluation of the veracity of the Katsel affidavit on which the magistrate’s report relies, I believe that it is inappropriate for this Court to make such a factual determination. The majority appears to disregard the fact that appellate courts do not generally consider new evidence in reviewing a lower court’s determination. The majority recognizes that determining the significance of the new evidence is “ ‘strictly within the province of the district court,’ ” Maj.Op. at 1243 n. 7 (quoting In re AOV Industries, Inc., 797 F.2d 1004, 1013 (D.C.Cir.1986)), but then goes on to find, based on its own factual determination, that the new evidence in this case warrants a remand to the district court. See Maj.Op. at 1242.

It is true that this Court has previously remanded a case to the district court where equitable circumstances required that new evidence be taken into account. In In re AOV Industries, Inc., supra, a creditor objected to fees awarded to the law firm of a Chapter 11 debtor, arguing that the law firm had ineffectively represented the debt- or’s interests due to a conflict of interests. Between the time of the district court fee award and the appeal, time sheets had been discovered that reflected the “true scope of the overlapping representation.” Id. at 1012 . Faced with this new information, this Court remanded the case to the district court for reconsideration of the fee award in light of these new time sheets. The Court noted that “[njormally, ... we are not required to consider evidence presented for the first time on appeal.” Id. (citation omitted). It also noted, however, that courts of appeal have limited discretion to make exceptions to that rule when “ ‘injustice might otherwise result.’ ” Id. (quoting Singleton v. Wulff, 428 U.S. 106, 121 , 96 S.Ct. 2868, 2877 , 49 L.Ed.2d 826 (1976)). The Court emphasized the numerous third party interests at stake in the proceeding, as well as the bankruptcy court’s role as a court of equity. Id. at 1012-13. Given that the time sheets were critical to determination of the issue, the Court found that “it would be inconsistent with this court’s own equitable obligations, and its supervisory role in reviewing other courts in equity, to pretend that they do not exist.” Id. at 1013. Accordingly, since district courts are the proper place for consideration of evidence, the Court remanded the ease for the district court to reconsider the question of overlapping representation in light of the new evidence. Id.

In the present case, however, we lack the equitable context that required resolution in AOV Industries. Instead, we are dealing with a single individual’s request for documents; one that has no effects on third parties, and that has statutory, rather than equitable, origins. Unlike the majority in this case, I believe the equitable context to be the critical factor in AOV Industries. It is not dispositive under AOV Industries that the new evidence in this case was arguably inconsistent with the BOP’s original claim. This Court addressed that issue in Center for Auto Safety v. Environmental Protection Agency, 731 F.2d 16 (D.C.Cir.1984). In that case, the trial court granted summary judgment for the government on a FOIA claim, basing its decision *1245 on the Environmental Protection Agency’s affidavits claiming that the documents requested were exempt. Following the trial court’s decision, Congress made public four of the requested documents. On appeal, the appellants argued that the comparison between the documents released and the agency’s affidavits showed that the affidavits were inaccurate. In rejecting this claim, the Court stated,

Evidence that became available after the district court’s decision can of course have no bearing upon whether that decision was an abuse of discretion. The latter determination must be made on the basis of the data then before the court. The new material which appellant presses upon our attention is, therefore, irrelevant to the issues presented in this appeal.

731 F.2d at 24 n. 9. The Court went on to note in dicta that the appellants’ claims fell short of a sufficient showing of agency bad faith. However, the Court’s decision to reject the appellants’ claims clearly rested on the inappropriateness of considering new evidence. Thus, contrary to the majority’s characterization, it does not matter that the new evidence presented in this case may be “inconsistent” with the BOP’s original claim, since it is simply irrelevant.

This Court reached a similar conclusion in Goland v. CIA, 607 F.2d 339 (D.C.Cir.1978), ce rt. denied, 445 U.S. 927 , 100 S.Ct. 1312 , 63 L.Ed.2d 759 (1980). Like AOV Industries and Center for Auto Safety, Goland dealt with the discovery of new materials between the time of the district court decision and the appeal. The district court in Goland granted summary judgment for the CIA on a FOIA claim, and this Court affirmed, finding that the CIA had made adequate efforts to locate documents responsive to the FOIA request. Following the district court decision and the filing of the appeal, but pending review, the CIA discovered hundreds of new documents that responded to the FOIA request. After the discovery, the CIA spent four weeks examining the documents, then, a week after the appellate opinion was released, informed the Justice Department of the existence of those documents. Id. at 367 .

The appellants argued that the discovery of new relevant documents impugned the integrity of the CIA affidavits on which the Court had relied to find that the CIA had made reasonable efforts to locate the requested documents. The Court noted that “[ajppellate review is ordinarily unaffected by matters not contained in the record.” Id. at 370 (footnote omitted). The Court recognized that there are exceptions to this rule, including 1) an intervening change in the law; 2) changed circumstances that render the controversy moot; 3) changed circumstances that alter the appropriateness of injunctive relief; and 4) “in limited cases, facts which may be judicially noticed,” id. at 370 n. 7 (citing Landy v. FDIC, 486 F.2d 139, 150-51 (3d Cir.1973), cert. denied, 416 U.S. 960 , 94 S.Ct. 1979 , 40 L.Ed.2d 312 (1974) (taking notice of the changing circumstances of the litigation itself)). However, the Court found that the new documents fit within none of these exceptions: “The fact that additional documents exist, insofar as it is probative of the thoroughness vel non of the search, is rather plainly ‘newly discovered evidence.’ ” Goland, 607 F.2d at 370 . The Court noted that it had found no appellate or Supreme Court decisions vacating an opinion on newly discovered evidence, for the reason that “an appellate opinion is based on the record before it, and hence cannot be set aside on the basis of newly discovered facts outside the record.” Id. (footnote omitted).

If new evidence is discovered, the Court stated, the appropriate route for the parties would be to move for relief from the judgment of the district court under Fed.R.Civ. Pro. 60(b) (allowing court to relieve party of a final judgment, upon motion of the party, for “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)”). This procedure allows a party to account for new evidence, but maintains that evidence within the province of the district court. Cf. Standard Oil Co. v. United States, 429 U.S. 17 , 97 S.Ct. 31 , 50 L.Ed.2d 21 (1976) (appellate leave not *1246 required for district court to rule on Rule 60(b) motion).

Like the majority in this case, the Go-land Court also addressed the adequacy of its holding if relief under Rule 60(b) were foreclosed. However, the Goland Court held that, even where Rule 60(b)’s one-year limitation barred its application, it would be inappropriate for the Court to remand the ease for the district court to consider the new evidence absent extraordinary circumstances. Although the Court found that it had fairly broad revisory power under 28 U.S.C. § 2106 (authorizing appellate courts to affirm, modify, vacate, set aside or reverse any judgments lawfully before them), it found that such power should be exercised only in compelling circumstances. Goland, 607 F.2d at 372-73 . Since, the Court found, the discovery of new documents did not necessarily mean that the CIA's search for documents had been inadequate, it did not believe that such extraordinary circumstances existed. Accordingly, the Court declined to disturb its prior affirmance of the district court decision.

Here, as in Goland , the new evidence is simply “new evidence;” it does not fit within one of the four exceptions where such evidence warrants appellate consideration. Congress has established Fed.R.Civ.Pro. 60(b) as a means of accommodating new concerns brought forward by new evidence. It is this process, rather than a broad reading of our appellate powers, that should be used when new evidence arises following a district court resolution. See Reuber v. United States, 750 F.2d 1039, 1051 (D.C.Cir.1984) (“Even where a dismissal is based on summary judgment, so that the reviewing court must view the record in the light most favorable to the appellant, any new evidence must be presented to the district court by a motion under Federal Rule of Civil Procedure 60(b) asking that court to reopen its final judgment.”); National Anti-Hunger Coalition v. Executive Committee, 711 F.2d 1071 , 1075 n. 4 (D.C.Cir.1983) (“The availability of the rule 60(b) procedure allows us to avoid considering whether this court, in the exercise of its appellate jurisdiction under 28 U.S.C. § 2106 (1976), should remand the case for further proceedings in light of the new facts.”); see also Weisberg v. Dept. of Justice, 705 F.2d 1344, 1362 (D.C.Cir.1983) (deciding that discovery of new documents did not impugn credibility of government affidavit attesting to thoroughness of document search, but declining to “assess[] the potential significance of [the plaintiffs] refusal to follow the procedure the federal rules established for consideration of newly-discovered evidence or defining with exactitude the reach of our judicial notice powers”). The majority suggests that Rule 60(b), being unavailable in the present case due to its one-year time limitation, supports its action. However, as the Go-land Court held, we compromise our appellate mandate by granting review of new evidence where the Rule is unavailable. Moreover, such a practice would appear to circumvent the limitations Congress placed on the Rule in the first instance. Thus, I agree with the Goland Court that we should consider new evidence only in extraordinary circumstances.

Nor, in my view, does this case present such extraordinary circumstances as to warrant the necessary extension of the authority granted to this Court under 28 U.S.C. § 2106 . The majority finds the situation to be extraordinary due to the unavailability of Rule 60(b) relief and the alleged inconsistency of the new evidence— factors that are insufficient to warrant consideration of new evidence under Goland and Center for Auto Safety . The majority’s other justification — the pro se appellant’s inability to access a computerized legal research service — goes only to the BOP’s position in Oliva v. Bureau of Prisons, No. 84 Civ. 5741 (JFK) (S.D.N.Y.1986), 1986 WL 2959 , and does not in any way obvious to me create a principled distinction from Goland or Center for Auto Safety . Thus, I conclude that this case does not present a situation so extraordinary as to warrant our consideration of the BOP’s recent release of Chapters 2 and 3.

Having set aside the information outside of the trial record on which the majority bases its opinion, I find that the trial judge acted appropriately in reviewing the magis *1247 trate’s report in this ease. The majority declines to reach Powell’s claim that the trial judge was required to apply a de novo standard of review to the magistrate’s report. However, as I would not remand this case to the district court to consider the new evidence, I believe we should uphold the judge’s decision approving the magistrate’s report under a clear-error standard of review.

In the present case, Powell made a general objection to the entire magistrate’s report, stating simply that “[t]he plaintiff hereby objects to the entire Report and Recomendation [sic] of the Magistrate and requests the District Judge to conduct a de novo review of the proceedings.” The district court determined that this “omnibus objection” was insufficiently specific to trigger de novo review under 28 U.S.C. § 636 (b)(1), which requires a judge to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” This decision is consistent with the majority of the courts of appeal, which have held that de novo review is triggered only where the party has made timely and specific objections to the magistrate’s report. See, e.g., Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir.1990) (“objections must be timely and specific to trigger de novo review by the District Court of any portion of the magistrate’s report and recommendation”); Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988) (“only those issues fairly raised by the objections to the magistrate’s report are subject to review in the district court”); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370 (6th Cir.1987) (same); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980) (“a party ‘may’ file objections within ten days or he may not, as he chooses, but he ‘shall’ do so if he wishes further consideration”).

The Ninth Circuit has reached a different conclusion, holding that failure to file timely objections relieves the trial court only of the obligation to review de novo questions of fact, while “conclusions of law must still be reviewed de novo.” Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.1989) (citation omitted). In the Ninth Circuit, then, the trial judge would likely be required to conduct a de novo review in this case, as the determination whether a document falls within a FOIA exemption presents a mixed question of law and fact. Cf. Ferri v. Bell, 645 F.2d 1213, 1222 (3d Cir.1981).

While this Court has never directly addressed the issue, I find the view espoused by the majority of circuits — that a failure to object to an issue ends entitlement to de novo review of that issue — to be more persuasive. One of the leading cases in this area is Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982). There, the Fifth Circuit held that a failure to file written objections to proposed findings and recommendations in a magistrate’s report barred the party from a de novo determination of the issues covered in the report, and from appealing factual findings except on grounds of plain error or manifest injustice. According to the Nettles court, the trial judge must make a de novo determination of those findings that are objected to, but is otherwise free to accept, reject, or modify the magistrate’s report. The court emphasized that judicial efficiency mandated such a rule, even for pro se plaintiffs. According to the court,

It is reasonable to place upon the parties the duty to pinpoint those portions of the magistrate’s report that the district court must specially consider. This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act.

Id. at 410 (citations omitted). See also Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980) (purpose of Magistrates Act is to relieve judge’s workload; if party does not file objections, it is therefore not entitled to later review).

Thus, the Magistrates Act’s concern with judicial efficiency indicates that the procedural requirements that attend the use of magistrates should be construed narrowly. Indeed, the Supreme Court has held that appellate courts are free to promulgate rules under which a failure to object to the magistrate’s report may waive appellate *1248 review altogether. Thomas v. Arn, 474 U.S. 140 , 106 S.Ct. 466 , 88 L.Ed.2d 435 (1985); see also Keating, 848 F.2d at 275 (failure to object to magistrate’s report waives appellate review); Detroit Federation of Teachers, 829 F.2d at 1370 (same). Cf. United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981) (“the fundamental congressional policy underlying the Magistrate’s Act — to improve access to the federal courts and aid the efficient administration of justice — is best served by our holding that a party shall file objections with the district court or else waive the right to appeal”). We need not address this question in the present case, as we have before us a proper appeal from a district court decision. See Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.1987) (“The fact that a particular ‘final decision’ is the product of the district court’s reasoned consideration of the magistrate’s report, instead of the court’s de novo review of the law, does not provide us with a sufficiently strong justification to circumscribe our duties under [28 U.S.C.] § 1291.”). However, we should note that a failure to object may, in accordance with Thomas v. Arn, result in even more serious consequences to the defendant than simply a failure to obtain de novo review.

Thus, where Powell failed to make specific objections to the magistrate’s report, it is appropriate for the trial judge to review the report under a clear-error, rather than a de novo, standard. The Third Circuit dealt with a case similar to the present one in Goney v. Clark, 749 F.2d 5 (3d Cir.1984). In that case, a pro se prisoner filed a § 1983 action against the prison warden. The case was tried by a magistrate and, instead of filing objections, the prisoner filed a “Motion for Notification of Appeal.” Id. at 6. The district court treated the motion as objections, and upheld the magistrate’s decision based only on a review of the pleadings, documents and a summary of the testimony.

The Third Circuit held that the district court was not required to conduct de novo review of the magistrate’s findings because the petitioner’s objections were not specific; they stated only a general appeal alleging that the magistrate was biased, and objected to no specific portion of the report. Id. at 7. Relying on the fact that a party may waive review through an untimely filing, the court stated, “[w]e are satisfied that providing a complete de novo determination where only a general objection to the report is offered would undermine the efficiency the magistrate system was meant to contribute to the judicial process.” Id. at 7 (citing H.R.Rep. No. 1609, 94th Cong., 2d Sess. 4-8, reprinted in 1976 U.S.Code Cong. & Ad.News 6162, 6164-68). Thus, the court concluded that the prisoner’s objections lacked the specificity necessary to trigger de novo review.

Similarly, in Mira v. Marshall, 806 F.2d 636 (6th Cir.1986), the Sixth Circuit held that de novo review was unnecessary where a pro se defendant made only general objections to the magistrate’s report. The defendant’s objections stated: “The undersigned objects to each and every finding of the Magistrate and requests that the court conduct a de novo review of the record.” Id. at 637 (citation omitted). The defendant objected specifically to three issues, and then stated, “Petitioner also objects to the other findings and recommendations of the Magistrate and requests that the court conduct a de novo review of the record.” Id. (citation omitted). Relying on Nettles’s holding that “[fjrivolous, conclusive or general objections need not be considered by the district court,” the court held that de novo review was necessary only as to the three listed issues. Mira v. Marshall, 806 F.2d at 637-38 , citing Nettles, 677 F.2d at 410 n. 8.

These cases indicate that the trial judge acted correctly in reviewing the magistrate’s report under a clear-error standard. Here, the plaintiff made only a cursory objection to the magistrate’s report. It is true that Powell was acting pro se in this case, an excuse for procedural inadequacy that the majority found had “some appeal.” Maj.Op. at 1242. However, as both Goney and Mira make clear, even pro se claimants are subject to procedural requirements, particularly where those requirements are established for reasons of judicial efficiency. Moreover, if Powell’s situation were such that he were unable to meet *1249 those procedural requirements, it is the trial court, rather than the appellate forum, that has the discretion to determine that certain procedural requirements are too rigid for a pro se petitioner. See Cay v. Estelle, 789 F.2d 318 (5th Cir.1986) (district court appropriately exercised discretionary authority to allow pro se party to file objections after 10-day period), disapproved on other grounds, Neitzke v. Williams, 490 U.S. 319 , 109 S.Ct. 1827 , 104 L.Ed.2d 338 (1989); Patterson v. Mintzes, 717 F.2d 284 (6th Cir.1983) (same).

In light of the case law, I believe that we should find that the trial judge acted correctly in finding that Powell’s superficial objections were insufficiently specific to trigger de novo review. Given that the magistrate’s report relied on the then un-contradicted Katsel affidavit, I would also affirm the trial court’s conclusion that the magistrate’s report was not clearly erroneous.