Weaver v. Madison City Board of Education et al
MEMORANDUM OPINION AND ORDER DENYING 17 MOTION to Dismiss. All Objections to the Report and Recommendation are OVERRULED. The Report and Recommendation of the Magistrate Judge is hereby ACCEPTED and his Recommendation is ADOPTED as the Opinion of this Court. Signed by Judge Virginia Emerson Hopkins on 8/14/2013. (JLC)
Weaver v. Madison City Board of Education et al
2013 Aug-14 AM 11:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICHAEL E. WEAVER,
MADISON CITY BOARD OF
EDUCATION, et al,
) Case No.: 5:11-CV-3558-TMP
MEMORANDUM OPINION AND ORDER
On October 4, 2011, the plaintiff, Michael Weaver, filed this lawsuit against
the defendants, the Madison City Board of Education (“the Board”), and Dee Fowler,
in his official capacity as Superintendent of Education for the Madison City Schools.
(Doc. 1). The complaint alleges that the defendants violated the Uniform Services
Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301, et seq.,
“by failing to re[-]employ [the plaintiff] to a proper position because of his
membership in the uniformed services.” (Doc. 1 at 1). Since Fowler is named only
in his official capacity, his presence as a defendant serves only as a means of naming
the Board itself; the only real defendant in this matter. See, Kentucky v. Graham, 473
U.S. 159, 165-66, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985) (quoting Monell v.
New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018,
2035, n. 55, 56 L.Ed.2d 611 1978)) (“Official-capacity suits . . . ‘generally represent
only another way of pleading an action against an entity of which an officer is an
This case comes before the court on the defendants’ motion to dismiss this case
for lack of subject matter jurisdiction. (Doc. 17). In that motion, the defendants
argued that the Board is an “arm of the state,” and any action against it under the
USERRA is therefore barred by the Eleventh Amendment of the United States
Constitution. (Doc. 17 at 2). The plaintiff disputed that the Board is an arm of the
state. (Doc. 32 at 38-64). He also argued that, even if the defendant is an “arm of the
state,” Eleventh Amendment immunity does not apply because the USERRA was
enacted pursuant to Congress’s constitutional War Powers. (Doc. 32 at 24-37). The
United States intervened in this matter on September 20, 2012. (Doc. 37). It filed its
brief in this matter on October 4, 2012, and also argued that the Board is not an arm
of the state. (Doc. 41).
On May 29, 2013, Magistrate Judge T. Michael Putnam recommended that the
motion be denied.1 (Doc. 50). In doing so, he relies primarily on the opinion of the
Document 50 is entitled “Memorandum Opinion,” because, at the time it was entered,
the magistrate thought that the parties had consented to jurisdiction. A subsequent order of the
magistrate redesignated this document as a Report and Recommendation. (Doc. 53).
Eleventh Circuit Court of Appeals in Stewart v. Baldwin Cnty. Bd. of Educ., 908 F.2d
1499 (11th Cir. 1990), which held that local school boards are not arms of the state.
Because of that determination, the magistrate decided that it was “unnecessary to
address the plaintiff’s argument that Eleventh Amendment immunity does not apply
to USERRA cases.” (Doc. 50 at 2, n. 3).
On June 20, 2013, the defendants and the plaintiff separately objected to the
recommendation. (Docs. 58, 59). The defendants argued that the magistrate
incorrectly determined that they are not entitled to Eleventh Amendment immunity.
(Doc. 58 at 3). The plaintiff “objects to the Magistrate Judge’s statement, at page 4
of Doc. 50, that ‘insofar as a private individual attempts to assert a claim under
USERRA against the ‘State (as an employer)’ or against an ‘arm of the state,’ the
Eleventh Amendment bars suit.’” (Doc. 59 at 2). The plaintiff also states:
By deciding the Eleventh Amendment immunity without deciding the
War Powers issue, the Magistrate Judge has decided one constitutional
issue (immunity) that may not even apply if Plaintiff and the United
States are correct that the War Powers Clauses prevents the application
of the Eleventh Amendment. The Court should decide both
constitutional issues – especially since the one constitutional provision
will prevent applying the other.
(Doc. 59 at 2).
On July 12, 2013, the United States responded to the defendants’ and the
plaintiff’s objections. (Doc. 64). That same day, the defendants and the plaintiff each
responded to the objections of the other. (Docs. 65, 66). The case was randomly
referred to the undersigned to rule on the objections.
For the reasons stated herein, the objections to the magistrate’s
recommendation will be OVERRULED, the magistrate’s recommendation will be
ADOPTED and ACCEPTED, and the motion to dismiss will be DENIED.
After conducting a “careful and complete” review of the findings and
recommendations, a district judge may accept, reject, or modify the magistrate judge’s
report and recommendation. See 28 U.S.C. § 636(b)(1) (“A judge of the court may
accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.”); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982)
(quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982), overruled on other
grounds by Douglass v. United Services Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996)).2
The district judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
A district judge “shall make a de novo determination of those portions of the
The Eleventh Circuit has adopted as binding precedent all Fifth Circuit
decisions issued before October 1, 1981, as well as all decisions issued after that
date by a Unit B panel of the former Fifth Circuit. Stein v. Reynolds Sec., Inc., 667
F.2d 33, 34 (11th Cir. 1982); see also United States v. Schultz, 565 F.3d 1353,
1361 n.4 (11th Cir. 2009) (discussing the continuing validity of Nettles).
report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). This requires that the district judge “give fresh
consideration to those issues to which specific objection has been made by a party.”
Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citing H.R. Rep.
No. 94-1609, 94th Cong., 2nd Sess., reprinted in 1976 U.S. Code Cong. & Admin.
News 6162, 6163). In contrast, those portions of the R&R to which no objection is
made need only be reviewed for clear error. Macort v. Prem, Inc., 208 Fed. App’x.
781, 784 (11th Cir. 2006).3
“Neither the Constitution nor the statute requires a district judge to review, de
novo, findings and recommendations that the parties themselves accept as correct.”
United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (internal quotation
marks omitted) (quoting United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003)). It is incumbent upon the parties to timely raise any objections that they may
Macort dealt only with the standard of review to be applied to a
magistrate's factual findings, but the Supreme Court has held that there is no
reason for the district court to apply a different standard to a magistrate's legal
conclusions. Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435
(1985). Thus, district courts in this circuit have routinely applied a clear-error
standard to both. See Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1373–74 (N.D.
Ga. 2006) (collecting cases). This is to be contrasted with the standard of review
on appeal, which distinguishes between the two. See Monroe v. Thigpen, 932 F.2d
1437, 1440 (11th Cir. 1991) (when a magistrate's findings of fact are adopted by
the district court without objection, they are reviewed on appeal under a
plain-error standard, but questions of law remain subject to de novo review).
have regarding a magistrate judge’s findings contained in a report and
recommendation, as the failure to do so subsequently waives or abandons the issue,
even if such matter was presented at the magistrate judge level. See, e.g., United
States v. Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) (“While Pilati raised the issue
of not being convicted of a qualifying offense before the magistrate judge, he did not
raise this issue in his appeal to the district court. Thus, this argument has been
waived or abandoned by his failure to raise it on appeal to the district court.”).
However, the district judge has discretion to consider or to decline to consider
arguments that were not raised before the magistrate judge. Stephens v. Tolbert, 471
F.3d 1173, 1176 (11th Cir. 2006); see also Williams v. McNeil, 557 F.3d 1287, 1292
(11th Cir. 2009) (“Thus, we answer the question left open in Stephens and hold that
a district court has discretion to decline to consider a party’s argument when that
argument was not first presented to the magistrate judge.”).
“Parties filing objections must specifically identify those findings objected to.
Frivolous, conclusive or general objections need not be considered by the district
court.” Nettles, 677 F.2d at 410 n.8. “This rule facilitates the opportunity for district
judges to spend more time on matters actually contested and produces a result
compatible with the purposes of the Magistrates Act.” Id. at 410. Indeed, a contrary
rule “would effectively nullify the magistrate judge’s consideration of the matter and
would not help to relieve the workload of the district court.” Williams, 557 F.3d at
1292 (internal quotation marks omitted) (quoting United States v. Howell, 231 F.3d
615, 622 (9th Cir. 2000)).
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation, the objections thereto, and the
responses to the objections, the court is of the opinion that the magistrate judge’s
report is correct.
The court expressly finds the opinion of the Eleventh Circuit Court of Appeals
in Stewart v. Baldwin Cnty. Bd. of Educ., 908 F.2d 1499 (11th Cir. 1990) to be on
point, and binding on this court. Because Stewart held that a local school board is not
an arm of the state for Eleventh Amendment purposes, and it has not been overruled,
it is dispositive of this issue. The Board does not have Eleventh Amendment
Further, the court determines that the magistrate was correct in declining to
reach the issue of whether Eleventh Amendment immunity applies to the USERRA.
Once the magistrate correctly determined that the Board was not an arm of the state,
and therefore was not entitled to Eleventh Amendment immunity, the issue became
moot. The plaintiff has provided no authority for the proposition that a magistrate
must decide all alternative bases for relief before referring a matter to a district judge.
All objections to the report and recommendation are OVERRULED. The
report and recommendation of the magistrate is hereby ACCEPTED and his
recommendation is ADOPTED as the opinion of this court. The motion to dismiss
DONE and ORDERED this 14th day of August, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
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