Disclaimer

The information on this website is presented as a service for our clients and Internet users and is not intended to be legal advice, nor should you consider it as such. Although we welcome your inquiries, please keep in mind that merely contacting us will not establish an attorney-client relationship between us. Consequently, you should not convey any confidential information to us until a formal attorney-client relationship has been established. Please remember that electronic correspondence on the internet is not secure and that you should not include sensitive or confidential information in messages. With that in mind, we look forward to hearing from you.

 Skip to Content

Objecting to a Magistrate Judge's Report and Recommendation
April 05, 2016

An unpublished opinion from the Tenth Circuit Court of Appeals in January 2016 caught our eye because it collected various established preservation-of-error principles for objecting to a magistrate judge's report and recommendation in one place. See Collins v. Colvin, 2016 WL 66503 (10th Cir. Jan. 6, 2016) (unpublished). The take-away is that the need for proper objections to such a report and recommendation cannot be overstated. As the appellate court explained, “[t]he scope of our review … is limited to the issues the claimant properly preserves in the district court and adequately presents on appeal,” and here the appellant “waived all issues that he did not raise in his objections to the R & R. ”

Preservation Issues:

  • “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for appellate review.”
  • “[O]nly an objection that is sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute will advance the policies behind the Magistrate's Act that led us to adopt a waiver rule in the first instance.”
  • Do not attempt to make your objections by incorporating earlier filings by reference.  The courts often “disfavor briefing by incorporation,” and sometimes “such a broad statement is not sufficiently specific to preserve any arguments for review.” 

Tips:

Remember to file timely and specific objections to a magistrate judge's report and recommendation in order to preserve issues for appellate review.  In doing so, resist the temptation to adopt by reference earlier arguments made in the case.  Spell those arguments out specifically again in your objections.  Of course, if you are faced with having to make arguments on appeal that were not preserved through objections to the report and recommendation, be sure to argue plain error on appeal.  Otherwise, even that exception will be waived.  “[T]he failure to argue for plain error and its application on appeal … surely marks the end of the road for a waived argument.”
Authored By
Image: Joseph H. Lang Jr.
Joseph H. Lang Jr.
Related Practices
Appellate & Trial Support
©2024 Carlton Fields, P.A. Carlton Fields practices law in California through Carlton Fields, LLP. Carlton Fields publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Carlton Fields. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our Contact Us form via the link below. The views set forth herein are the personal views of the author and do not necessarily reflect those of the firm. This site may contain hypertext links to information created and maintained by other entities. Carlton Fields does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.