UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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BENJAMIN VELAYO, 

 Plaintiff - Appellant,

v.

CHERYL FOX; DEPARTMENT OF 

VETERANS AFFAIRS, 

 Defendants - Appellees.

No. 23-3139

(D.C. No. 2:23-CV-02249-JAR-ADM)

(D. Kan.)

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ORDER AND JUDGMENT*

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Before MATHESON, BALDOCK, and EID, Circuit Judges.

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Benjamin Velayo appeals the dismissal of his pro se action under the Federal Tort 

Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2675(a) (FTCA), for failure to exhaust the 

FTCA notice requirements. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I

Velayo sued the Department of Veterans Affairs (VA) and a VA employee, 

Cheryl Fox, alleging various grievances sounding in tort. He filed his complaint 

* 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.

FILED

United States Court of Appeals

Tenth Circuit

February 9, 2024

Christopher M. Wolpert

Clerk of Court

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using a template form that asked, “Have the claims which you make in this civil 

action been presented through any type of Administrative Procedure within any 

government agency?” R. at 7. Velayo marked a box answering, “No.” Id. 

A magistrate judge screened the complaint, see 28 U.S.C. § 1915(e)(2)(B), and

determined that Velayo conceded he did not present his claims to the VA, which 

precluded him from proceeding under the FTCA. The magistrate judge explained 

that the FTCA constitutes a limited waiver of the government’s sovereign immunity, 

and that, “[u]nder the FTCA, ‘a tort claim against the United States is barred unless it 

is presented in writing to the appropriate federal agency within two years after such 

claim accrues,’” R. at 13-14 (quoting United States v. Kubrick, 444 U.S. 111, 113 

(1979) (further internal quotation marks omitted). The magistrate judge stated that 

the FTCA’s notice requirements are jurisdictional, and, because Velayo did not 

present his claims to the VA at any time, the action should be dismissed for lack of 

subject matter jurisdiction. 

The magistrate judge notified Velayo that he had 14 days to object to the 

report and recommendation and that his failure to do so would waive appellate 

review. Velayo objected, stating as follows: “I, Benjamin Velayo[,] disagree [with] 

the decision of U.S. Magistrate Judge Mitchell. I received the certified mail on June 

10, 2023.” Id. at 16 (capitalization omitted). This was the entirety of his objection.

 The district court overruled the objection, reasoning that Velayo failed to

specifically identify any issue with which he disagreed. Absent any explanation for 

Velayo’s disagreement with the magistrate judge’s decision, the district court

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adopted the report and recommendation and dismissed the suit for lack of subject 

matter jurisdiction. Velayo now appeals.

II

We normally review de novo the district court’s subject matter jurisdiction. 

See Est. of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 

2005). Here, however, we confront the threshold issue of whether Velayo waived 

appellate review by failing to file specific objections to the magistrate judge’s report 

and recommendation. Under this court’s firm-waiver rule, the failure to file timely, 

specific objections to the magistrate judge’s report and recommendation waives 

appellate review of both factual and legal questions. United States v. 2121 E. 30th 

St., 73 F.3d 1057, 1059-60 (10th Cir. 1996). “[A] party’s objections to the magistrate 

judge’s report and recommendation must be both timely and specific to preserve an 

issue for de novo review by the district court or for appellate review.” Id. at 1060. 

“[T]he district court’s decision to conduct a de novo review, sua sponte, does not 

warrant lifting the bar of appellate review . . . .” Id. at 1061. “This rule does not 

apply, however, 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.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 

2005) (internal quotation marks omitted). 

Velayo’s objection is not sufficiently specific to preserve appellate review. An

objection must be “sufficiently specific to focus the district court’s attention on the 

factual and legal issues that are truly in dispute.” 2121 E. 30th St., 73 F.3d at 1060. 

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But Velayo simply asserted in general that he disagreed with the magistrate judge’s 

decision. This falls far short of the specificity needed to preserve appellate review. 

See id. (“Just as a complaint stating only ‘I complain’ states no claim, an objection 

stating only ‘I object’ preserves no issue for review.” (internal quotation marks 

omitted)). Further, neither exception to the firm-waiver rule applies. The magistrate 

judge clearly warned Velayo that he had 14 days to object and that if he failed to file 

objections within that time no appellate review would be allowed. See R. at 14-15. 

As for the interests of justice, we consider “a pro se litigant’s efforts to comply, the 

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

of the issues raised.” Morales-Fernandez, 418 F.3d at 1120. Velayo made no 

attempt to identify any specific issue in his objection, he offers no explanation for 

failing to do so, and nothing in his materials suggests the issues here are so important 

as to warrant overlooking the waiver.

Indeed, even if we overlooked the waiver, the result here would be the same.

Velayo alleged that Fox is bothering him and interfering with his privacy. The 

district court, in adopting the magistrate judge’s report and recommendation, 

correctly recognized that to proceed under the FTCA, Velayo was required to provide 

notice of his claims to the VA. See 28 U.S.C. §§ 2401(b), 2675(a).

1

 “Because the 

1 Section 2401(b) states:

A tort claim against the United States shall be forever barred unless it is 

presented in writing to the appropriate Federal agency within two years 

after such claim accrues or unless action is begun within six months 

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FTCA constitutes a waiver of the government’s sovereign immunity, the notice 

requirements established by the FTCA must be strictly construed. The requirements 

are jurisdictional and cannot be waived.” Trentadue, 397 F.3d at 852 (internal 

quotation marks omitted). Velayo expressly conceded on the face of his complaint 

that he did not present his claims to the VA. He does not contend otherwise on 

appeal or even address his failure to satisfy the FTCA’s notice requirements. 

Because he failed to satisfy the FTCA’s notice requirements, the district court lacked 

subject matter jurisdiction and properly dismissed the suit.

III

The district court’s judgment is affirmed.

Entered for the Court

Bobby R. Baldock

Circuit Judge

after the date of mailing, by certified or registered mail, of notice of 

final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b) (emphasis added).

Section 2675(a) states:

An action shall not be instituted upon a claim against the United States 

for money damages for injury or loss of property or personal injury or 

death caused by the negligent or wrongful act or omission of any 

employee of the Government while acting within the scope of his office 

or employment, unless the claimant shall have first presented his claim 

to the appropriate Federal agency and his claim shall have been finally 

denied by the agency in writing and sent by certified or registered mail.

28 U.S.C. § 2675(a) (emphasis added).

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