United States Court of Appeals 

For the First Circuit 

No. 15-1782 

WILMARY SANTOS-SANTOS, 

Plaintiff, Appellant, 

v. 

REYNALDO TORRES-CENTENO, ET AL., 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge] 

Before 

Lynch, Selya, and Lipez, 

Circuit Judges. 

Eric C. Marion, with whom Law Office of Eric Marion was on 

brief, for appellant. 

Michelle Camacho-Nieves, Assistant Solicitor General of 

Puerto Rico, with whom Margarita L. Mercado-Echegaray, Solicitor 

General of Puerto Rico, was on brief, for appellee. 

 

November 23, 2016 
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LIPEZ, Circuit Judge. Appellant Wilmary Santos-Santos 

("Santos"), an officer with the Puerto Rico Police Department 

("PRPD"), filed this employment discrimination case against the 

Commonwealth of Puerto Rico, the PRPD, and a number of her 

coworkers under various federal and Puerto Rico statutes. Santos 

alleges that she was transferred against her wishes to a different 

department within the PRPD after she co-signed a sexual harassment 

complaint against a coworker, acted as a witness in a separate 

investigation of that coworker, and filed an unrelated complaint 

regarding the misuse of police property by her superiors. Santos 

sought compensatory and punitive damages, as well as an injunction 

barring the PRPD from further discrimination.

The district court granted summary judgment for the 

defendants on all of Santos's claims in two rulings in August 2012 

and November 2014. On appeal, Santos attempts to challenge both 

entries of summary judgment. Because Santos failed to adhere to 

procedural requirements relating to the dispositions of a 

magistrate judge as set forth by Federal Rule of Civil Procedure 

72(b) and Puerto Rico Local Rule 72(d), we affirm the district 

court's decisions without reaching the merits of Santos's claims. 

I. 

We recount in detail the complicated procedural history 

of this case because it is determinative of the appeal. Santos 

filed this action in January 2011. While several discovery motions 
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were pending before the district court, the defendants moved for 

summary judgment. Instead of filing a standard opposition to the 

defendants' summary judgment motion, Santos, citing Rule 56(d) of 

the Federal Rules of Civil Procedure, filed a response asserting 

that she still required certain documents that were among her 

discovery requests to effectively counter the defendants' motion. 

In August 2012 the district court granted summary judgment in favor 

of defendants on nearly all of Santos's claims,1 finding that her 

attempted reliance on pending discovery related only to her First 

Amendment claim -- which the court dismissed for failing to state 

a claim upon which relief could be granted under Garcetti v. 

Ceballos, 547 U.S. 410 (2006).2 Only Santos's retaliation claims 

under Title VII and Law 115 survived, and the court instructed 

Santos to file her opposition to the summary judgment motion on 

these issues. 

 1 Santos's principal claims alleged violations of her free 

speech rights under the First Amendment, retaliation under Title 

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, 

and retaliation under Act No. 115 of December 20, 1990, P.R. Laws 

Ann. tit. 29, §§ 194-194b ("Law 115"). She also alleged a 

conspiracy among her employer and coworkers to interfere with her 

civil rights under 42 U.S.C. § 1985, along with a number of other 

violations of federal and Puerto Rico laws. 

2 The court found that Santos failed to demonstrate that any 

of her comments for which she alleged retaliation in violation of 

the First Amendment were made while speaking in her capacity as a 

private citizen, which Garcetti requires. See 547 U.S. at 418.
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After Santos filed her opposition memorandum, the 

district court dismissed her Title VII retaliation claims against 

individual defendants Gregorio Merced-Vázquez, Reynaldo TorresCenteno, William Ruiz-Borrás, and Miguel Santiago-Rivera, and her 

Law 115 claim against William Ruiz-Borrás. At that point, the 

surviving claims consisted of Santos's Title VII claims against 

the Commonwealth of Puerto Rico and the PRPD and her Law 115 claims 

against the Commonwealth of Puerto Rico, the PRPD, Merced-Vázquez, 

Torres-Centeno, and Santiago-Rivera. 

Defendants next filed a motion for reconsideration, 

asking the court to dismiss the case in its entirety, which the 

court denied. While the defendants' motion for reconsideration 

was pending, Santos sought interlocutory review in this court of 

the order dismissing her other claims. We concluded that we did 

not have jurisdiction to hear her appeal at that time, dismissed 

the interlocutory appeal without prejudice, and returned the case 

to the district court.

Discovery thus proceeded as the case moved toward trial. 

In June 2014, however, defendants filed a second motion for summary 

judgment on the remaining claims in light of the Supreme Court's 

decision in University of Texas Southwestern Medical Center v. 

Nassar, 133 S. Ct. 2517 (2013).3 Santos filed her opposition, and

 3 Nassar held that Title VII retaliation claims require the 

more stringent "but-for" causation standard of proof rather than 
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the court referred the matter to a magistrate judge, who 

recommended that the motion be granted. Santos did not file an 

objection to the magistrate judge's report and recommendation 

within the fourteen-day deadline prescribed by Federal Rule of 

Civil Procedure 72(b) and Puerto Rico Local Rule 72(d). On 

November 20, 2014, the district judge adopted the magistrate 

judge's report and recommendation in full and entered final 

judgment dismissing Santos's claims with prejudice. In its 

dismissal order the court noted that "[a]bsent objection . . . [a] 

district court ha[s] a right to assume that [the affected party] 

agree[s] with the magistrate judge's recommendation" and that the 

court "needs only [to] satisfy itself by ascertaining that there 

is no 'plain error' on the face of the record." Santos-Santos v. 

P. R. Police Dep't., 63 F. Supp. 3d 181, 184 (D.P.R. 2014) (quoting 

Lopez-Mulero v. Velez-Colon, 490 F. Supp. 2d 214, 217-18 (D.P.R. 

2007)). 

On the same day that final judgment was entered, Santos 

responded by filing a "Motion to Reconsider and Set Aside 

Memorandum and Order as Well as Judgment." Santos complained that 

her lawyer was out of the jurisdiction when the magistrate judge 

posted his report and recommendation and, hence, did not see that 

 

the more lenient "mixed-motive" causation standard permitted in 

Title VII discrimination claims grounded in race, color, religion, 

sex, or national origin. See 133 S. Ct. at 2534. 
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it had been issued until final judgment was entered. She also 

asserted that because there was no docket entry informing parties 

of the motion's referral, her lawyer was never aware that it had 

been assigned to a magistrate judge. Santos asked the court to 

set aside its judgment dismissing her case and requested that she 

be given an opportunity to object to the report and recommendation.

The district court chose to view Santos's motion as a 

"request for reconsideration," but it responded by cautioning 

Santos as follows in an electronic docket order entered the 

following day: 

[T]he fact that a formal referral was not 

entered in this case is immaterial, since the 

record confirms that (i) the Report and 

Recommendation was notified to [Santos's 

attorney's] email address of record; (ii) it 

included a warning that failure to file 

specific objections within fourteen days would 

constitute a waiver of the right to appellate 

review . . . and (iii) as per [Santos's 

attorney's] admission, the lack of referral 

was not the reason behind his untimely request 

to "closely review, analyze and object" [to] 

the Report and Recommendation. . . . To the 

contrary, [Santos's attorney] admits that, due 

to numerous professional commitments, 

yesterday, for the first time, he saw the 

Report and Recommendation because he "never 

checked the docket until today when the CM/ECF 

e-mails [were] received." . . . This 

contention cannot serve as [the] basis for 

reconsideration of the order. See[] SantiagoDiaz v. Laboratorio Clinico y de Referencia 

del Este and Sara L[ó]pez MD, 456 F.3d 272, 

276 n.3 (1st Cir. 2006) (A party is "fully 

chargeable with knowledge of what the docket 

disclosed."). The Court, however, will 

consider the memorandum of law in support of 
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her request for reconsideration it has 

authorized to be filed before making a final 

determination in this case. 

 Santos subsequently filed her memorandum in support of 

her motion for reconsideration on December 16, 2014, attaching an 

additional motion asking the district court to extend the original 

period for filing objections to the magistrate judge's report and 

recommendation.4 She argued that reconsideration was appropriate 

due to the excusable neglect of her attorney -- claiming for the 

first time that notification of the magistrate judge's issuance of 

the report and recommendation had ended up in her attorney's email 

"spam folder."

The court accepted Santos's memorandum of law and 

permitted her to file the additional motion on December 17, 2014, 

but it advised her in an electronic docket order that it would 

treat the additional motion as part of her original motion for 

reconsideration. Defendants opposed Santos's motion, asserting 

that it was improper because it did not "seek[] to correct manifest 

errors of law, present newly discovered evidence, or [assert] an 

intervening change in law" -- the recognized bases for a motion to 

alter or amend a judgment under Federal Rule of Civil Procedure 

 4 Santos also submitted her proposed objections. In her 

proposed objections she challenged the magistrate judge's findings 

on the but-for causation standard of proof required for her Title 

VII retaliation claims, but she also attempted to relitigate the 

claims that the court had dismissed two years earlier in its first 

summary judgment order. 
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59(e).5 See, e.g., Prescott v. Higgins, 538 F.3d 32, 45 (1st Cir. 

2008). In a reply memorandum, Santos argued that her proposed 

objections to the magistrate judge's report and recommendation -- 

describing an alleged manifest error of law or fact in the court's 

adoption of the magistrate judge's report and recommendation -- 

and the excusable neglect of her attorney were sufficient to unwind 

the judgment. Defendants filed a final "Informative Motion," again 

urging the district court to reject Santos's argument on the ground 

that she failed to meet the standard for a motion to reconsider. 

 On June 10, 2015, the district court entered an 

electronic order denying Santos's motion for reconsideration: 

The Court has carefully re-examined the 

arguments raised by plaintiff in support of 

her motion for reconsideration at Docket No. 

160 and finds no reason to deviate from its 

prior ruling, after adopting the Report and 

Recommendation. In her motion, plaintiff does 

not direct to any newly discovered evidence or 

an intervening change in the law; and has not 

shown that the Court's order was clearly 

unjust or based on a manifest error of law. 

Rather, she insists and elaborates upon her 

previous arguments and even asks the court to 

reconsider an order entered more than two (2) 

years ago. The court declines plaintiff's 

invitation. As such, and absent a valid 

 5 Santos's motion to reconsider did not reference any Federal 

Rule of Civil Procedure, but it appears that defendants assumed 

Santos's motion was a Rule 59(e) motion to amend or alter a 

judgment. Santos, herself, adopted this framework in her reply to 

the defendants' response. However, Santos was not asking the court 

to amend or alter its judgment, but in fact to vacate the judgment 

based on her attorney's excusable neglect. Hence, as we explain 

below, the motion is properly characterized as a Rule 60(b) motion 

for relief from a judgment or order. 
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ground for reconsidering the previous 

disposition, plaintiff's motion for 

reconsideration at Docket No. 160 is DENIED. 

Santos then timely filed a notice of appeal, asking this court to 

review "the Judgment entered November 20, 2014, tolled by her 

Motion filed December 17, 2014 which was denied on June 10, 2015."6

 On appeal, Santos contends that the district court erred 

when it granted summary judgment for defendants on her First 

Amendment claims in its August 2012 order and when it granted 

summary judgment for defendants on her Title VII and Law 115 claims 

in November 2014. 

II. 

 Summary judgment is proper when "there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law." Fed. R. Civ. P. 56(a); Conjugal 

P'ship Acevedo-Principe v. United States, 768 F.3d 51, 54 (1st 

Cir. 2014). In a typical appeal from a district court's grant of 

 6 Federal Rule of Appellate Procedure 4(a)(1)(A) typically 

requires that a notice of appeal be filed in the district court 

within 30 days after the entry of the judgment which the party 

wishes to appeal. However, as we note below, Santos's motion for 

reconsideration constituted a Rule 60(b) motion for relief from a 

judgment. When a party files any Rule 60 motion within 28 days of 

the entry of judgment -- as Santos did in this case -- the time to 

file an appeal runs from the entry of the order disposing of the 

Rule 60 motion. See Fed. R. App. P. 4(a)(4)(A)(vi). (Because 

Santos's December 17, 2014 motion was filed within 28 days of entry 

of final judgment, we need not decide whether the appropriate date 

to ascribe to her motion for reconsideration for purposes of 

Appellate Rule 4(a)(4)(A)(vi) was the date of her initial November 

20, 2014 motion or her December 17, 2014 follow-up motion.) 
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summary judgment, our review is de novo, and we view the facts in 

the light most favorable to the non-moving party -- in this case 

Santos. Del Valle-Santana v. Servicios Legales de P.R. Inc., 804 

F.3d 127, 129 (1st Cir. 2015). 

 But this is not a typical appeal. Our review is 

contingent on a party's compliance with procedural rules that 

prescribe how issues may be preserved for appeal. Under Federal 

Rule of Civil Procedure 72(b) and Puerto Rico Local Rule 72(d), a 

party who wishes to challenge a magistrate judge's report and 

recommendation must file written objections within fourteen days. 

Likewise, it has long been the rule in this circuit that under the 

provisions of the Federal Magistrates Act, 28 U.S.C. § 636(b), 

parties who fail to file objections to a magistrate judge's report 

and recommendation lose their right to appellate review. Park 

Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 

1980) ("We conclude that a party 'may' file objections within [the 

statutorily prescribed number of] days or he may not, as he 

chooses, but he 'shall' do so if he wishes further 

consideration."); see also Sch. Union No. 37 v. United Nat'l Ins. 

Co., 617 F.3d 554, 564 (1st Cir. 2010) ("[O]nly those issues fairly 

raised by the objections to the magistrate's report are subject to 

review in the district court and those not preserved by such 
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objection are precluded on appeal." (quoting Keating v. Sec'y of 

Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988))).7 

 As noted above, Santos failed to object to the magistrate 

judge's report and recommendation. The magistrate judge warned 

her that "[f]ailure to comply with [Puerto Rico Local Rule 72(d)] 

precludes further appellate review." Santos's failure to comply 

with this rule bars us from examining the merits of her appeal. 

 After entry of final judgment, Santos filed a motion for 

reconsideration, asking the district court to reopen the suit and 

providing the objections that she would have lodged to the 

magistrate's report and recommendation if she had not missed the 

deadline set forth by Federal Rule of Civil Procedure 72(b) and 

Puerto Rico Local Rule 72(d). Santos's motion stated that she 

would not have missed the deadline but for her attorney's excusable 

neglect in failing to realize that the report and recommendation 

had been issued. "Excusable neglect" is listed as one of the 

specific bases for "grounds for relief from a final judgment, 

order, or proceeding" under Federal Rule of Civil Procedure 

 7 The Supreme Court has upheld the application of this rule. 

See Thomas v. Arn, 474 U.S. 140, 155 (1985) ("[A] court of appeals 

may adopt a rule conditioning appeal, when taken from a district 

court judgment that adopts a magistrate's recommendation, upon the 

filing of objections with the district court identifying those 

issues on which further review is desired. Such a rule, at least 

when it incorporates clear notice to the litigants and an 

opportunity to seek an extension of time for filing objections is 

a valid exercise of the supervisory power that does not violate 

either the Federal Magistrates Act or the Constitution."). 
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60(b)(1). Although Santos never cited the rule in her motion to 

reconsider, her motion is properly characterized as a Rule 60(b) 

motion for relief from the judgment.8 Cf. United States v. $23,000 

in United States Currency, 356 F.3d 157, 165 & n.9 (1st Cir. 2004) 

(distinguishing a Rule 59(e) motion to modify a judgment from a 

Rule 60(b) motion to vacate a judgment). Demonstrating excusable 

neglect is a "demanding standard." Id. at 164. The trial judge 

"has wide discretion" in this arena, and "we will not meddle unless 

we are persuaded that some exceptional justification exists." Id. 

at 164-65. Such an "exceptional justification" must be something 

more than an attorney's failure to monitor the court's electronic 

docket. "Unfortunately for [Santos,] routine carelessness by 

counsel leading to a late filing is not enough to constitute 

excusable neglect." Negron v. Celebrity Cruises, Inc., 316 F.3d 

60, 62 (1st Cir. 2003). The district court acted within its 

discretion when it denied Santos's motion for reconsideration.

III. 

 In her brief Santos urges us to consider her First 

Amendment claim that was dismissed by the district court in August 

 8 In its denial of Santos's motion for reconsideration, the 

district court employed the framework of a Rule 59(e) motion, which 

was introduced by defendants in their opposition to Santos's motion 

and adopted by Santos, herself, in her reply. But as we have 

noted, vacating a judgment on the ground of excusable neglect by 

one party's attorney is governed by Rule 60(b), not Rule 59(e). 

Hence, we analyze whether the district court's denial of Santos's 

motion for reconsideration was proper under Rule (60)(b).
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2012. Her notice of appeal, however, refers only to the district 

court's November 2014 decision to accept the magistrate judge's 

report and recommendation on her remaining Title VII and Law 115 

claims and its denial of her motion to reconsider the entry of 

final judgment. "Even though notices of appeal are to be liberally 

construed, if the appellant 'chooses to designate specific 

determinations in [her] notice of appeal -- rather than simply 

appealing from the entire judgment -- only the specified issues 

may be raised on the appeal.'" Brooks v. AIG SunAmerica Life 

Assurance Co., 438 F.3d 579, 585 (1st Cir. 2007) (quoting 

Constructora Andrade Gutiérrez, S.A. v. Am. Int'l. Ins. Co. of 

P.R., 467 F.3d 38, 43 (1st Cir. 2006)). By expressly asking us to 

review specific decisions of the district court to the exclusion 

of all other district court decisions, Santos gave neither this 

court nor appellees proper notice that she intended to dispute the 

earlier ruling on her First Amendment claim, leaving us without 

jurisdiction to review it. See Constructora Andrade Gutiérrez, 

467 F.3d at 44. "[D]esignating a completely separate and 

independent order loudly proclaims [a] plaintiff's intention not 

to appeal from the former order. . . . As an ancient maxim teaches, 

'expressio unius est exclusio alterius.'" Kotler v. Am. Tobacco 

Co., 981 F.2d 7, 11 (1st Cir. 1992) (citation omitted). 

 Affirmed.