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White v. Federal Emergency, Management Agency

United States District Court, W.D. Virginia, Harrisonburg Division

February 2, 2018

JOHN WHITE, Plaintiff,



         This 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.


         Rule 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. § 636(b)(1).

         If, 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 .. ..").

         Additionally, 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.


         FEMA 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 judicata." Id.

         The 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.

         The 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.[1] See Pl.'s Mot. Reconsideration ("Pl.'s Obj."), ECF No. 20, at 2-8. The court addresses each objection in turn.

         A. ...

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