CourtListener opinion 9988343

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IN THE UNITED STATES DISTRICT COURT 
 FOR THE MIDDLE DISTRICT OF ALABAMA 
 EASTERN DIVISION 

DAVID POWELL, ) 
 ) 
 Plaintiff, ) 
 ) 
 v. ) CASE NO. 3:23-CV-26-RAH 
 ) 
RAILROAD RETIREMENT ) 
BOARD, ) 
 ) 
 Defendant. ) 
 ORDER 
 On May 15, 2023, the Magistrate Judge recommended this case be dismissed 
without prejudice for lack of subject matter jurisdiction and that the motion to amend be 
denied as futile. (Doc. 25.) On May 24, 2023, Plaintiff David Powell filed Plaintiff's 
Motion and Answer to this Court of Proper Jurisdiction, which the Court has construed as 
Objections (Doc. 26) to the Recommendation. 
 When a party objects to a Magistrate Judge's Report and Recommendation, the 
district court must review the disputed portions de novo. 28 U.S.C. § 636(b)(1). The district 
court "may accept, reject, or modify the recommended disposition; receive further 
evidence; or resubmit the matter to the magistrate judge with instructions." Fed.R.Civ.P. 
72(b)(3). De novo review requires that the district court independently consider factual 
issues based on the record. Jeffrey S. ex rel. Ernest S. v. State Bd. of Educ., 896 F.2d 507, 
513 (11th Cir. 1990). See also United States v. Gopie, 347 F. App'x 495, 499 n.1 (11th Cir. 
2009). However, objections to the Magistrate Judge's Report and Recommendation must 
be sufficiently specific in order to warrant de novo review. See Macort v. Prem, Inc., 208 
F. App'x 781, 783-85 (11th Cir. 2006). Otherwise, a Report and Recommendation is 
reviewed for clear error. Id. 

 Plaintiff objects to the Magistrate Judge's determination that this Court lacks subject 
matter jurisdiction. He contends this Court has jurisdiction pursuant to the Federal 
Interstate Commerce Act, which provides, in pertinent part, that "[t]he district courts shall 
have original jurisdiction of any civil action or proceeding arising under any Act of 
Congress regulating commerce or protecting trade and commerce against restraints and 

monopolies. . . ." 28 U.S.C. § 1337(a). He argues that Finnerty v. Cowen, 508 F.2d 979 
(2nd Cir. 1974), supports his contention that a district court has subject matter jurisdiction 
over cases involving the receipt of retirement benefits. The circumstances of Finnerty, 
however, are distinguishable. In Finnerty, a widow receiving retirement benefits sought to 
enjoin, as unconstitutional, the operation of certain sections of the Railroad Retirement Act 

("the Act") requiring the reduction of annuities to offset earnings of recipients. Id. In this 
case, Powell does not challenge the constitutionality of the Act. Instead, Powell challenges 
a domestic relations order of the Circuit Court of Cook County regarding the distribution 
of his Railroad Retirement Act benefits to his ex-wife and/or seeks review of a decision by 
the Railroad Retirement Board to comply with the domestic relations order. Consequently, 

this Court agrees with the Magistrate Judge that this court lacks subject matter jurisdiction. 
 Accordingly, upon an independent review of the record, it is 
 ORDERED as follows: 
1. The Objections (Doc. 26) are OVERRULED; 
2. The Recommendation (Doc. 25) is ADOPTED; 
3. Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 9) is 
 GRANTED; 
4. Plaintiff's Motion for Judgment (Doc. 18) be DENIED; and 
5. This case is DISMISSED without prejudice. 
DONE, on this the 30th day of May 2023. 

 R. AUSTIN ‘fe JR. 
 UNITED STATES DISTRICT JUDGE