UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JAMES B. SANTOS, 

 Plaintiff - Appellant, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of the Social Security 

Administration, 

 Defendant - Appellee. 

No. 14-5156 

(D.C. No. 4:14-CV-00015-JED-TLW) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

James B. Santos appeals pro se from a district court order that dismissed his 

complaint challenging the agency’s denial of disability insurance benefits (DIB). 

Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. 

Background 

Mr. Santos submitted multiple DIB applications over several decades. Only 

the two most recent are relevant here. 

 *

 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 

July 15, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

In 1997, Mr. Santos unsuccessfully applied for DIB. In denying the 

application, the agency listed Mr. Santos’s date of last insured as December 31, 1986. 

He did not request a hearing before an administrative law judge (ALJ), and the 

agency’s decision became final. 

In 2012, Mr. Santos filed a DIB application that alleged a disability onset date 

in 2004. After his application was denied, Mr. Santos requested a hearing. But an 

ALJ dismissed the request, citing res judicata and concluding the 2012 application 

raised the same facts and issues as the 1997 application. In reaching that conclusion, 

the ALJ found that Mr. Santos was last insured for DIB on March 31, 1985. 

Represented by counsel, Mr. Santos filed suit in federal district court. The 

Acting Commissioner moved to dismiss. A magistrate judge concluded res judicata 

did not apply because Mr. Santos’s 1997 and 2012 applications were based on 

different facts, as they had different dates of disability onset and DIB coverage. 

Nevertheless, the magistrate judge found that the erroneous application of res 

judicata was harmless because Mr. Santos’s 2004 disability onset date was “well after 

any of the previously stated dates last insured” in 1985 and 1986. R., Vol. I at 73 

n.5. Thus, the magistrate judge recommended granting the motion to dismiss. 

Mr. Santos did not object. The district court accepted the magistrate judge’s 

recommendation and dismissed the case. 
3 

Discussion1

“This circuit has adopted a firm waiver rule when a party fails to object to the 

findings and recommendations of the magistrate judge.” Casanova v. Ulibarri, 

595 F.3d 1120, 1123 (10th Cir. 2010) (brackets and internal quotation marks 

omitted). Under this rule, “the failure to make timely objection waives appellate 

review of both factual and legal questions.” Id. (ellipsis and internal quotation marks 

omitted). 

Mr. Santos seeks to avoid application of the rule because he lost his legal 

representation roughly five months before the report and recommendation was issued 

and he “was not notified [he] had to object.” Aplt. Reply Br. at 2. Granted, “[t]here 

are two exceptions when the firm waiver rule does not apply: 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.” Duffield v. 

Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (internal quotation marks omitted). 

But neither exception applies here. 

As for the first exception, the report and recommendation clearly advised that 

“[o]nly a timely specific objection will preserve an issue . . . for appellate review” 

and it listed the deadline for filing an objection. R., Vol. I at 74. Mr. Santos does not 

assert he failed to receive the report and recommendation. Indeed, as evidenced by 

his timely filing a notice of appeal, Mr. Santos received the district court’s decision 

 1

 Because Mr. Santos is proceeding pro se, we construe his filings liberally, 

but we do not construct arguments or otherwise advocate on his behalf. See Yang v. 

Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). 
4 

accepting the report and recommendation. He has failed to show the first exception 

to the firm waiver rule applies. 

Regarding the second exception, “interests of justice,” we typically 

“consider[ ] factors such as a pro se litigant’s effort to comply, the force and 

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

issues raised.” Duffield, 545 F.3d at 1238 (internal quotation marks omitted). 

Mr. Santos does not adequately explain his failure to comply. He indicates he was 

representing himself for nearly five months before the magistrate judge issued the 

report and recommendation. But even assuming he did not receive the report and 

recommendation, he “has failed to identify any efforts he made to obtain the 

magistrate’s recommendation after being made aware of its existence” via the district 

court’s order accepting it, Theede v. U.S. Dep’t of Labor, 172 F.3d 1262, 1268 (10th 

Cir. 1999). Mr. Santos has not addressed the importance-of-the-issues factor. 

Accordingly, Mr. Santos has waived appellate review of the district court’s 

decision dismissing his social security complaint.2

 2

 The Acting Commissioner argues that this court “lack[s] jurisdiction to 

review a dismissal of a hearing request based on res judicata.” Aplee. Br. at 10. 

We need not reach this issue, given that we have resolved this case on the non-merits 

ground of the firm waiver rule. See Farrell-Cooper Min. Co. v. U.S. Dep’t of 

Interior, 728 F.3d 1229, 1234 (10th Cir. 2013) (noting that “[a] federal court has 

leeway to choose among threshold grounds for denying audience to a case on the 

merits” (quoting Sinochem Intern. Co. Ltd. v. Malaysia Intern. Shipping Corp., 

549 U.S. 422, 431 (2007))). 
5 

Conclusion 

The judgment of the district court is affirmed. 

 Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge