UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

EDWARD G. HUNTER, 

 Plaintiff - Appellant,

v.

HCA; MOUNTAINSTAR 

HEALTHCARE, aka Mountainstar

Health; COLUMBIA OGDEN 

REGIONAL MEDICAL CENTER, dba 

Ogden Regional Hospital; MARK 

ADAMS, CEO, in official and individual 

capacity; BRIAN LINES, COO, in 

official and individual capacity; MINDY 

BOEHM, Dr, in official and individual 

capacity; ED EHRENBERGER, in 

official and individual capacity; CARLA 

TAYLOR, in official and individual 

capacity; STEVE KIER, in official and 

individual capacity; VICKY MCCALL, 

in official and individual capacity; 

DANN BYCK, in official and individual 

capacity; KEITH HANCETT, in official 

and individual capacity; JEFF 

STEPHENS, in official and individual 

capacity; YASMEEN SIMONIAN, in 

official and individual capacity; JOHN 

HEMMERSMEIER, in official and 

individual capacity; DON CAZEL, in 

official and individual capacity; 

PATRICK WILLIS, in official and 

individual capacity; JOHN DIEMEL, in 

official and individual capacity; 

DANIELLE IHLER, in official and 

individual capacity,

 Defendants - Appellees. 

 

No. 19-4034 

(D.C. No. 1:17-CV-00060-JNP) 

(D. Utah) 

FILED

United States Court of Appeals

Tenth Circuit

May 18, 2020

Christopher M. Wolpert

Clerk of Court
2 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HOLMES, BACHARACH, and EID, Circuit Judges. 

_________________________________ 

Edward G. Hunter filed an action against a hospital and related defendants in 

which he claimed that defendants’ actions wrongfully contributed to the termination 

of his employment and other injuries. Because Hunter failed to object to the 

magistrate judge’s recommendation to grant summary judgment in favor of 

defendants on all of his claims, he waived his right to appellate review. Accordingly, 

we dismiss his appeal.

I. Background

Hunter was employed by Utah Imaging Associates (“UIA”) as an 

interventional radiologist physician assistant. He had privileges to perform medical 

procedures at Ogden Regional Medical Center (“ORMC”). Hunter experienced 

serious health conditions and personal problems that spilled over into his work. He 

claimed that ORMC improperly responded to his health, conduct, and performance 

issues, which contributed to the loss of his medical privileges at ORMC, the 

* 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. 
3 

termination of his employment with UIA, and the loss of his license with the State of 

Utah.

In response to defendants’ summary judgment motion, Hunter argued there 

were disputed fact issues regarding his breach-of-contract claims. He also sought 

leave to amend his claim under the Americans with Disabilities Act (“ADA”). A 

magistrate judge issued a report and recommendation (“R&R”) recommending that 

the district court deny, as futile, Hunter’s request to amend his ADA claim and grant 

summary judgment in favor of defendants. The R&R advised: “Within fourteen (14) 

days of being served with a copy, any party may serve and file written objections. 

See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure to object may constitute a 

waiver of objections upon subsequent review.” Aplt. App. at 277. Hunter did not 

file objections to the R&R. The district court adopted the R&R in full, granted the

summary judgment motion, and entered judgment for defendants on all of Hunter’s 

claims.

Hunter appealed. This court issued an order to show cause why he had not 

waived his right to appellate review by failing to object to the R&R. After Hunter 

filed a response, the issue was referred to this panel for decision.

II. Discussion

This court has “adopted a firm waiver rule that provides that the failure to 

make timely objections to the magistrate[ judge’s] findings or recommendations 

waives appellate review of both factual and legal questions.” United States v. One 

Parcel of Real Prop., 73 F.3d 1057, 1059 (10th Cir. 1996) (internal quotation marks 
4 

omitted). This rule “advance[s] the policies behind the Magistrate’s Act,” including 

“enabl[ing] the district judge to focus attention on those issues—factual and legal—

that are at the heart of the parties’ dispute and giv[ing] the district court an 

opportunity to correct any errors immediately.” Id. (citation and internal quotation 

marks omitted). The firm waiver rule promotes the efficient use of judicial resources 

based upon “the same rationale that prevents a party from raising an issue before a 

circuit court of appeals that was not raised before the district court.” Id. at 1060

(brackets and internal quotation marks omitted).

We have recognized two exceptions to the firm waiver rule. We do not apply 

the rule “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). The first exception does not apply here 

because Hunter was represented by counsel in the district court. See Allman v. 

Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016) (holding the first exception was 

inapplicable because the appellant was represented by counsel); Key Energy Res. Inc. 

v. Merrill (In re Key Energy Res. Inc.), 230 F.3d 1197, 1200 (10th Cir. 2000) (“[T]he 

level of notice required for pro se litigants is not pertinent [where] appellant . . . is 

represented by counsel.” (citation omitted)). And the interests-of-justice exception 

applies to a counseled party “only in the rare circumstance in which a represented 

party did not receive a copy of the magistrate[ judge’s] R & R.” Vega v. Suthers, 

195 F.3d 573, 580 (10th Cir. 1999); see also In re Key Energy Res., 230 F.3d at 1200
5 

(“[I]n counseled, civil, nonhabeas cases, the merits of the underlying case should not 

be considered in determining whether the interests of justice exception has been 

met. . . . [D]etermination of the interests of justice exception should focus instead on 

the facts that purport to excuse the lack or untimeliness of the filing of objections.”).

Hunter does not claim that he failed to receive the R&R. And his contention

that the magistrate judge’s notice was unclear—because it stated only that a failure to 

object “may” result in a waiver—is insufficient to support an exception. As noted, a

counseled party cannot avoid application of the firm waiver rule by alleging that the 

R&R did not provide sufficient notice of the potential for waiver. See In re Key 

Energy Res., 230 F.3d at 1200. In any event, and contrary to Hunter’s suggestion, 

our provision of limited exceptions to the firm waiver rule demonstrates that the rule 

is not applied in every case.

Hunter also contends that neither the statute governing referral of dispositive 

issues to magistrate judges, 28 U.S.C. § 636(b)(1)(B), nor the corresponding

procedural rule, Federal Rule of Civil Procedure 72(b), “contains . . . language to the 

effect that a failure to object to [an R&R] on a dispositive motion may or will 

constitute a waiver.” Resp. to Ord. to Show Cause at 4. He notes that Rule 72(a), 

which addresses magistrate judges’ rulings on nondispositive matters, does include a 

waiver provision. This argument ignores the origin of our firm waiver rule, which is 

neither statutory nor expressly dictated by a procedural rule. Rather, as explained, 
6 

we adopted the firm waiver rule to advance the policies behind the Magistrate’s Act.

1

 

As to Hunter’s contention that the magistrate judge exceeded his statutory authority 

by including waiver language in the R&R, the requirement to advise pro se parties of 

the consequence of a failure to object is likewise grounded in our case law. See

Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991) (requiring magistrate 

judges to advise pro se parties in an R&R of the time period for objecting and the 

consequent waiver of the right to appeal upon failing to do so). And as a counseled 

party, Hunter received more notice regarding the firm waiver rule than our case law 

requires.

III. Conclusion

Hunter waived appellate review by failing to file objections to the magistrate 

judge’s R&R. The appeal is therefore dismissed. See In re Key Energy Res., 

230 F.3d at 1201; Theede v. U.S. Dep’t of Labor, 172 F.3d 1262, 1264, 1268 

(10th Cir. 1999).

Entered for the Court 

Allison H. Eid 

Circuit Judge 

1 Moreover, Hunter’s contention appears to confuse this court’s application of 

the firm waiver rule on appeal with the effect of a failure to object on the district 

court’s de novo review of an R&R under Rule 72(b)(3).