United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE.
pro se Title VII action was referred to the Honorable Joel C.
Hoppe, United States Magistrate Judge, pursuant to 28 U.S.C
§ 636(b)(1)(B), for proposed findings of fact and a
recommended disposition. The magistrate judge filed a report
and recommendation ("Report & Recommendation"),
ECF No. 19, on November 21, 2017, recommending that the court
grant defendant Federal Emergency Management Agency's
("FEMA") motion to dismiss without prejudice
plaintiff John White's complaint for lack of
jurisdiction. White has filed objections to the report, and
this matter is now ripe for the court's consideration.
72(b) of the Federal Rules of Civil Procedure permits a party
to "serve and file specific, written objections" to
a magistrate judge's proposed findings and
recommendations within fourteen days of being served with a
copy of the report. See also 28 U.S.C. §
636(b)(1). The Fourth Circuit has held that an objecting
party must do so "with sufficient specificity so as
reasonably to alert the district court of the true ground for
the objection." United States v. Midgette, 478
F.3d 616, 622 (4th Cir. 2007), cert denied. 127
S.Ct. 3032 (2007).
To conclude otherwise would defeat the purpose of requiring
objections. We would be permitting a party to appeal any
issue that was before the magistrate judge, regardless of the
nature and scope of objections made to the magistrate
judge's report. Either the district court would then have
to review every issue in the magistrate judge's proposed
findings and recommendations or courts of appeals would be
required to review issues that the district court never
considered. In either case, judicial resources would be
wasted and the district court's effectiveness based on
help from magistrate judges would be undermined.
Id. The district court must determine de
novo any portion of the magistrate judge's report
and recommendation to which a proper objection has been made.
"The district court may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions."
Fed.R.Civ.P. 72(b)(3); accord 28 U.S.C. §
however, a party '"makes general or conclusory
objections that do not direct the court to a specific error
in the magistrate judge's proposed findings and
recommendations, '" de novo review is not
required. Diprospero v. Colvin, No.
5:13-cv-00088-FDW-DSC, 2014 WL 1669806, at *1 (W.D. N.C. Apr.
28, 2014) (internal quotations omitted). "The court will
not consider those objections by the plaintiff that are
merely conclusory or attempt to object to the entirety of the
Report, without focusing the court's attention on
specific errors therein." Camper v. Comm'r of
Soc. Sec. No. 4:08cv69, 2009 WL 9044111, at *2 (E.D. Va.
May 6, 2009), affd. 373 Fed.Appx. 346 (4th Cir.
2010), cert, denied. 131 S.Ct. 610 (2010); see
also Midgette, 478 F.3d at 621 ("Section
636(b)(1) does not countenance a form of generalized
objection to cover all issues addressed by the magistrate
judge; it contemplates that a parly's objection to a
magistrate judge's report be specific and particularized,
as the statute directs the district court to review only
'those portions of the report or
specified proposed findings or recommendations
to which objection is made.'"). Such
general objections "have the same effect as a failure to
object, or as a waiver of such objection." Moon v.
BWX Technologies, 742 F.Supp.2d 827, 829 (W.D. Va.
2010), affd. 498 Fed.Appx. 268 (4th Cir. 2012):
see also Thomas v. Arn' 474 U.S. 140, 154 (1985)
("[T]he statute does not require the judge to review an
issue de novo if no objections are filed .. ..").
objections that simply reiterate arguments raised before the
magistrate judge are considered to be general objections to
the entirety of the report and recommendation. See Veney
v. Astrue, 539 F.Supp.2d 841, 844-45 (W.D. Va. 2008). As
the court noted in Veney:
Allowing a litigant to obtain de novo review of her entire
case by merely reformatting an earlier brief as an objection
"mak[es] the initial reference to the magistrate
useless. The functions of the district court are effectively
duplicated as both the magistrate and the district court
perform identical tasks. This duplication of time and effort
wastes judicial resources rather than saving them, and runs
contrary to the purposes of the Magistrates Act."
539 F.Supp.2d at 846 (quoting Howard v. Sec'y of
Health & Human Servs., 932 F.2d 505, 509 (6th Cir.
1991)). A plaintiff who reiterates her previously raised
arguments will not be given "the second bite at the
apple she seeks"; instead, her re-filed brief will be
treated as a general objection, which has the same effect as
would a failure to object. Id.
raised three arguments in its Motion to Dismiss, or, in the
Alternative, Motion for Summary Judgment. ECF No. 9. First,
FEMA argued that "any Tide VII claims related to die
revocation of White's security clearance and consequent
removal from federal service are foreclosed from judicial
review." Def.'s Mem. Law Supp. Mot. Dismiss &
Mot. Summ. J. ("MTD Br."), ECF No. 10, at 2.
Second, FEMA contended that White "failed to
administratively exhaust die vast majority of any potential
claims he might assert based on his allegations."
Id. at 3. Third, FEMA claimed that White's
claims "relying upon actions of [FEMA] that occurred
prior to February 2011 are barred by res
magistrate judge rejected FEMA's exhaustion arguments.
White filed an administrative complaint in which "he
alleged that FEMA terminated his employment because his
security clearance was revoked, and he identified race
discrimination and retaliation for filing complaints in June
and October 2013 as die grounds for his termination."
Report & Recommendation 9. After die EEOC issued a
right-to-sue letter, "White timely brought suit in this
Court." Id. Further, the magistrate judge found
that White's odier allegations "appear to be offered
as support for his properly exhausted claims of race
dscrimination and retaliation related to his firing in 2016
rather than separate claims." Id. at 10.
magistrate judge then agreed with FEMA and found that the
court lacks subject matter jurisdction "over White's
Tide VII claims because adjudicating them would require the
Court to review [FEMA's] decision to revoke his security
clearance." Id. White levies two objections:
(1) his job description did not require security clearance,
and (2) the magistrate judge's legal analysis into
subject matter jurisdiction. See Pl.'s Mot.
Reconsideration ("Pl.'s Obj."), ECF No. 20, at
2-8. The court addresses each objection in turn.