Houser v. McGettigan

Filing 11

ORDER ADOPTING 10 REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 11/13/2017. (copy to Pro Se Plaintiff via CM,rrr) (nmm) (Additional attachment(s) added on 11/13/2017: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
CHARLES A. HOUSER,
Plaintiff,
v.

CIVIL ACTION NO.: 3:17-CV-74
(GROH)

KATHLEEN MCGETTIGAN,
Acting Director of the Office
of Personnel Management,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
Currently pending before the Court is a Report and Recommendation (“R&R”)
issued by United States Magistrate Judge Robert W. Trumble. ECF No. 10. Pursuant to
this Court’s Local Rules, this action was referred to Magistrate Judge Trumble for
submission of an R&R. On October 19, 2017, Magistrate Judge Trumble issued his R&R,
recommending that this Court dismiss without prejudice the Plaintiff’s complaint and deny
as moot his application to proceed in forma pauperis.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, this Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge to which no objections are made.
Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file objections in a timely manner
constitutes a waiver of de novo review and a plaintiff’s right to appeal this Court’s order.
28 U.S.C. § 636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United
States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).

In this case, pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal
Rules of Civil Procedure, objections to Magistrate Judge Trumble’s R&R were due within
fourteen days after being served with a copy of the same. The R&R was sent to the
Plaintiff by certified mail, return receipt requested, on October 19, 2017. ECF No. 10.
Service was accepted by the Plaintiff on October 23, 2017. To date, no objections have
been filed. Accordingly, the Court will review the R&R for clear error.
Upon consideration, the Court finds that it is without jurisdiction to consider the
Plaintiff’s claims because he is required to submit his claims to the Civil Service
Retirement System or the Federal Employees’ Retirement System. Any appeal from
those administrative decisions should be taken to the U.S. Court of Appeals for the
Federal Circuit.
Therefore, upon review, and finding no error, the Court ORDERS Magistrate Judge
Trumble’s Report and Recommendation [ECF No. 10] be ADOPTED for the reasons
more fully stated therein. The Court hereby ORDERS that the Plaintiff’s complaint [ECF
No. 1] be DISMISSED WITHOUT PREJUDICE. The Plaintiff’s Motion for Leave to
Proceed In Forma Pauperis [ECF No. 2] is DENIED AS MOOT.
The Court DIRECTS the Clerk to strike this case from the active docket and
transmit a copy of this Order to the pro se Plaintiff by certified mail, return receipt
requested.
DATED: November 13, 2017

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