Jerome McCoy v. U.S. Postal Service, Patrick McNally

JEROME McKOY, Plaintiff-Appellant, -v.- UNITED STATES POSTAL SERVICE, PATRICK McNALLY, 2nd V.P., National Association of Letter Carriers AFL CIO "Union", Defendants-Appellees.

02-6284

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

98 Fed. Appx. 28; 2004 U.S. App. LEXIS 6098

April 1, 2004, Decided

NOTICE:

[*1] RULES OF THE SECOND CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

SUBSEQUENT HISTORY: US Supreme Court certiorari denied by McKoy v. United States Postal Serv., 543 U.S. 1013, 125 S. Ct. 649, 160 L. Ed. 2d 480, 2004 U.S. LEXIS 7874 (2004)
Related proceeding at McKoy v. Potter, 2006 U.S. Dist. LEXIS 40170 (S.D.N.Y., June 14, 2006)

PRIOR HISTORY:

Appeal from the United States District Court for the Southern District of New York (Stein, J.).
McKoy v. Potter, 2002 U.S. Dist. LEXIS 16991 (S.D.N.Y., Sept. 12, 2002)

DISPOSITION:

Affirmed.

COUNSEL: APPEARING FOR APPELLANT: JEROME McKOY, Staten Island, NY (Pro se).

APPEARING FOR APPELLEE UNITED STATES POSTAL SERVICE: RUSSELL M. YANKWITT, Assistant United States Attorney, New York, NY (James B. Comey, United States Attorney, and Sara L. Shudofsky, of counsel).

APPEARING FOR APPELLEES NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO AND PATRICK McNALLY: PETER HERMAN, Cohen, Weiss and Simon LLP, New York, NY.

JUDGES: PRESENT: HON. JOSEPH M. McLAUGHLIN, HON. DENNIS JACOBS, Circuit Judges, HON. ALFRED V. COVELLO, District Judge. Honorable Alfred V. Covello, United States District Judge for the District of Connecticut, sitting by designation.

OPINION

SUMMARY ORDER

Jerome McKoy appeals from the judgment entered in the United States District Court for the Southern District of New [*2] York (Stein, J.), adopting the magistrate judge's report and recommendation (Gorenstein, M.J.) and therefore granting summary judgment in favor of the United States Postal Service ("USPS") and dismissal on the pleadings in favor of the National Association of Letter Carriers and Patrick McNally. Familiarity is assumed as to the facts, the procedural context, and the specification of appellate issues.

McKoy claims that the magistrate court lacked jurisdiction because he never consented to its involvement. However, 28 U.S.C. § 636(b)(1)(B) permits "a judge [to] designate a magistrate judge to conduct hearings . . . and to submit to a judge of the court proposed findings of fact and recommendations for the disposition." The magistrate judge issued a report and recommendation pursuant to this provision; consent of the parties therefore was not required. Moreover, the district court conducted de novo review of this report and recommendation, and it considered McKoy's objections thereto.

As to the merits, this Court reviews de novo a district court's grant of summary judgment, e.g., Howley

v. Town of Stratford, 217 F.3d 141, 151 (2d Cir. 2000), [*3] and judgment on the pleadings under Fed. R. Civ. P. 12(c), e.g., Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir. 1996). "In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party." Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). For substantially the reasons stated in the magistrate judge's report and recommendation, the district court properly granted the appellees' respective motions. Accordingly, it is unnecessary to address the USPS's alternative argument that dismissal of McKoy's Title VII claims was justified by McKoy's failure to exhaust his administrative remedies.

We do not consider the new claims presented on appeal, including McKoy's assertion that the USPS engaged in unfair labor practices. See, e.g., Singleton v. Wulff, 428 U.S. 106, 120, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976) ("It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below."). [*4] We considered and reject McKoy's remaining challenges to the district court's judgment.

All of McKoy's numerous pending motions are denied as (variously) meritless, moot, unnecessary, or beyond the power of the Court to grant.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.