Opinion
Civil Action 3:22-CV-408
01-13-2023
DAVID SENICK, Plaintiff v. RAILROAD RETIREMENT BOARD, Defendant
MANNION, D.J.
REPORT AND RECOMMENDATION
WILLIAM I. ARBUCKLE, U.S. MAGISTRATE JUDGE
Defendant Railroad Retirement Board Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 15)
I. INTRODUCTION
In January 2011, Railroad Retirement Board Hearings Officer Richard Konopka found David Senick (“Plaintiff”) entitled to a disability annuity. (Doc. 1). Following this finding, the Railroad Retirement Board (“RRB”) began payment but adjusted the amount Plaintiff was entitled to, deducting workers' compensation and Social Security survivor benefit payments. Plaintiff argues that neither of these should have been deducted. Plaintiff brings a breach of contract claim that appears in fact to be a claim for review of the RRB's decisions. This Court does not have subject matter jurisdiction to hear Plaintiff's claim. Therefore, it will be RECOMMENDED that Defendant's Motion to Dismiss (Doc. 15) be GRANTED without prejudice and this case be DISMISSED.
II. RULE 12(B)(1) STANDARD
Federal Rule of Civil Procedure 12(b)(1) provides the mechanism for a party to move for dismissal due to the court's lack of subject matter jurisdiction. “Subject-matter jurisdiction defines the court's authority to hear a given type of case.”Subject matter jurisdiction “represents the extent to which a court can rule on the conduct of persons or the status of things.” Under Rule 12(b)(1), “[w]hen subject matter jurisdiction is challenged . . . the plaintiff must bear the burden of persuasion.” In deciding a Rule 12(b)(1) motion, the court must first determine whether the “motion presents a “facial” attack or a “factual” attack on the claim at issue, because that distinction determines how the pleading must be reviewed.”
United States of America v. Morton, 467 U.S. 822, 828 (1984).
Carlsbad Tech. Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citing Black's Law Dictionary 870 (8th ed. 2004) (internal quotations omitted)).
Kehr Packages Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
Const. Party of Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014) (citing In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)).
A facial attack . . . is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court . . . . A factual attack . . . is an argument that there is no subject matter jurisdiction because the facts of the case . . . do not support the asserted jurisdiction.
Id. at 358.
Here, the RRB asserts a facial attack as their Motion to Dismiss for Lack of Jurisdiction was filed “before [the RRB] filed any answer to the Complaint or otherwise presented competing facts.” This is, “by definition, a facial attack.”
Id.
Id. (citing Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884, 892 n.17 (3d Cir. 1977)).
When reviewing a facial attack, “the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” Therefore, the court is “to apply the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party.”
Gould Electronics Inc. v. United States of America, 220 F.3d 169, 176 (3d Cir. 2000). See also Moore v. Angie's List Inc., 118 F.Supp. 802, 806 (E.D. Pa. 2015).
Constitution Party, 757 F.3d at 358 (citing In re Schering Plough Corp. Intron, 678 F.3d at 243).
III. RELEVANT BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed this complaint naming one defendant, the Railroad Retirement Board (RRB), an agency of the federal government. Plaintiff states he is bringing a breach of contract claim that stems from a disability annuity he was awarded in January of 2011. The complaint recites in detail his ten years plus correspondence with the RRB since that award.
With his initial fifteen (15) page handwritten Complaint Plaintiff attached thirty-seven (37) exhibits totaling 199 pages. Most of the exhibits consist of handwritten correspondence he wrote, interspersed with partial copies of notices received from the Railroad Retirement Board. The attachments are not in chronological order and there was no index. The Court ordered Plaintiff to file an index to the exhibits for his Complaint (Doc. 13) which he did (Doc. 14-1). However, this index does not match the number of pages generated by ECF when the exhibits were originally filed. Despite this limitation it does contain the exhibit numbers with a description of the documents and allows the court to analyze the Complaint against Defendant's Motion to Dismiss.
Defendant's Motion to Dismiss (Doc. 15) contains an interesting narrative of the history of Plaintiff's claim but does not comply with Local Rule 7.3.Apparently concluding that certain documents were necessary for the Court to decide their motion, Defendant attached eight exhibits to its Brief in Support of the Motion to Dismiss, (Doc. 17), that did not comply with L.R. 5.1(f).
LR 7.3 Exhibits and Other Documents Substantiating Motions. When allegations of fact are relied upon in support of a motion, all pertinent affidavits, transcripts, and other documents must be filed simultaneously with the motion and shall comply with Local Rule 5.1 (f).
L.R. 5.1(f) excerpt: …. In all instances where more than one exhibit is part of the same filing, there shall be a table of contents for the exhibits.
The challenge for the Court when comparing the Plaintiff's exhibits with those of the Defendant's is deciding which are undisputedly authentic. Consideration of documents and exhibits when deciding a Motion to Dismiss is limited to “only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.”
Those attached to his original Complaint (Doc. 1) and his Brief in Opposition to the Motion to Dismiss (Doc. 16)
Those attached to their Brief in Support of their Motion (Doc. 17-1).
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).
Rising to that challenge it appears that only the following documents are necessary to consider and decide this Motion to Dismiss:
| Date | Document | Pl Ex. | D Ex. |
| 01/07/11 | Decision of the Hearings Officer | Doc. 1-2 | Doc. 17-1 |
| 02/04/11 | Disability Annuity Pay Summary | Doc. 1-16 p. 15 | |
| 02/08/11 | Disability Annuity Pay Summary | Doc. 1-16 p. 11 | Doc. 17-2 |
| 10/19/20 | Notice of widower's benefits | Doc. 20-2 p. 2 | |
| 11/20/20 | Pay Summary (SS Survivor) (Reduction b/c Social Security pay) | Doc. 17-5 | |
| 05/26/22 | Notice of Reconsideration (W.C.) (For period of 07/01/08 to 12/31/08) | Doc. 17-6 | |
| 08/09/22 | Payment Adjustment Award (W.C.) | Doc. 17-7 | |
| 09/13/22 | Appeal of 08/09/22 decision | Doc. 16-14 p. 3 | |
| 09/29/22 | Receipt of Request Reconsideration | Doc. 17-8 |
The Complaint in this case was filed on March 8, 2022. In that Complaint, Plaintiff demands reconsideration of his benefit calculations and money damages for benefits awarded as far back as 2011. The benefits were modified in 2020 when he became eligible for Social Security Widower's Benefits. It appears that the Railroad Retirement Board granted him some reconsideration in May and August of 2022 and that he has appealed that reconsideration as recently as September of 2022.
All these documents are undisputedly authentic and make clear that as of September 29, 2022, the Plaintiff has an administrative appeal pending. He has not produced a final administrative decision upon which to appeal. The RRB asserts there is no final decision.
In apparent response to the Defendant's main motion (Doc. 15) and brief (Doc. 17), Plaintiff filed a premature Brief in Opposition (Doc. 16), and later filed a Motion for Judgment by Default (Doc. 18), A Brief in Opposition re Motion to Dismiss (Doc. 19), a Supplement to his Brief in Opposition (Doc. 20), and a Letter Re Recently Filed Documents (Doc. 21). Sorting out these confusing documents allows an analysis of what is a straightforward wrong time, wrong court defense.
IV. ANALYSIS
A. Plaintiff's Claim
In his Complaint, Plaintiff states his “lawsuit is for breach of contract and agreement by federal law for pension obligations so ordered by a hearing officer.” (Doc. 1, p. 1). Although labeled as a breach of contract claim, the Court interprets Plaintiff's breach of contract claim as a claim for review of the RRB's determinations that his workers' compensation and survivor benefit payments should be deducted from rather than added to railroad his annuity. (See Doc. 1, 1-4, 1-6, 1-27).
Plaintiff appears to believe that the January 7, 2011 decision by Hearings Officer Konopka is a binding contract that cannot be modified unless so specified by the decision. Id. Plaintiff argues the RRB has breached that contract in deducting survivor benefit and workers' compensation payments from the annuity he was awarded. Id. Plaintiff disagrees that his annuity is subject to deductions for both of those payments as the decision by Hearings Officer Konopka is silent as to their deduction. Id. Plaintiff appears to believe that by making deductions that were not specified in Hearings Officer Konopka's decision the RRB is breaching that contract. Id.
In his February 6, 2011 letter addressed to Robert Ralston of the RRB regarding his back pension owed and the deduction of his workers' compensation payment from his annuity, Plaintiff clearly is disputing the deduction of those payments. Plaintiff argues that the January 7, 2011 decision by Hearings Officer Konopka “clearly does not say anything regarding workmens comp. [sic] or any other income be deducted whatsoever. What qualifies you to be a judge or hearing officer to refuse this award.” (Doc. 1-4, p. 3).
In the letter from the RRB dated November 20, 2020, Plaintiff was informed that his survivor benefit would be deducted from his annuity. (Doc. 1, ¶ 31). Plaintiff clearly disputes this, arguing that “the survivor benefit should have been added per hearing officers ruling on or about January 7, 2011.” Id. Plaintiff argues that the deduction of the survivor benefit “totally ignor[es] hearing officer ruling on or about January 7, 2011.” (Doc. 1, ¶ E). In his Brief in Opposition, Plaintiff argues that Hearings Officer Konopka's letter “supersedes [sic] any other rule or agreement.” (Doc. 16, p. 4).
Plaintiff is seeking as relief the amount he believes he is owed based on the January 7, 2011 decision by Hearings Officer Konopka. (Doc. 1, p. 11). To grant him this relief this Court would be required to find that the RRB was incorrect in deducting Plaintiff's workers' compensation and survivor benefit payments from his annuity. Doing so would require the Court to review the RRB's decisions that these payments were to be deducted from Plaintiff's annuity. As explained below, this Court lacks subject matter jurisdiction to review those determinations.
B. Subject Matter Jurisdiction
In an attempt to comply with Federal Rule of Civil Procedure 8(a)(1), Plaintiff states, “this court has subject matter jurisdiction over this action.” This conclusory statement is not a “statement of the grounds for the court's jurisdiction.” Plaintiff cannot establish this Court's subject matter jurisdiction over his claim for review because the Court is statutorily deprived of jurisdiction.
Plaintiff carries the burden of persuasion when subject matter jurisdiction is challenged. Kehr, 926 F.2d at 1409.
In its Motion to Dismiss for Lack of Subject Matter Jurisdiction the RRB contends that jurisdiction to hear Plaintiff's claim seeking review of the RRB's assessment of deductions for workers' compensation and survivor benefit payments is barred by 45 U.S.C. § 355(f) and 45 U.S.C. § 231g. (Doc. 15). Section 5(f) of the Railroad Unemployment Insurance Act (“RUIA”) provides:
Any claimant . . . or any other party aggrieved by a final decision under subsection (c) of this section, may, only after all administrative remedies within the Board will have been availed of and exhausted, obtain a review of any final decision of the Board by filing a petition for review within ninety days after the mailing of notice of such decision to the claimant or other party, or within such further time as the Board may allow, in the United States Court of Appeals for the Circuit in which the claimant or other party resides or will have had his principal place of business or principal executive office, or in the United States Court of Appeals for the Seventh Circuit or in the United States Court of Appeals for the District of Columbia.Section 8 of the Railroad Retirement Act (“RRA”) incorporates this section of the RUIA:
Decisions of the Board determining the rights or liabilities of any person under this subchapter shall be subject to judicial review in the same manner, subject to the same limitations, and all provisions of law shall apply in the same manner as though the decision were a determination of corresponding rights or liabilities under the Railroad Unemployment Insurance Act except that the time within which
proceedings for the review of a decision with respect to an annuity, supplemental annuity, or lump-sum benefit may be commenced shall be one year after the decision will have been entered upon the records of the Board and communicated to the claimant.
The RRA lengthens the amount of time an individual has to file the petition for review. In these provisions Congress has “vest[ed] exclusive appellate jurisdiction over decisions of the [Railroad Retirement] Board in the Court of Appeals.”
Carter v. R.R. Retirement Bd., 834 F.2d 62, 63 (3d Cir. 1987).
The RRB argues that, based on these two statutory provisions, this Court has no subject matter jurisdiction over this case because 1) Plaintiff can point to no final decision that has resulted from his exhaustion of administrative remedies, and 2) even if Plaintiff did have the necessary final decision from his exhaustion of administrative remedies, jurisdiction to challenge the decision would be vested exclusively in the specific United States Courts of Appeals detailed in 45 U.S.C. § 355(f). (Doc. 17, p. 7-11).
In response to the RRB's Motion, Plaintiff generally disputes the motion but does not offer an explanation as to why these statutes would not apply to his claim or otherwise attempt to provide a basis for jurisdiction. Plaintiff concludes in his Briefs in Opposition, (Docs. 16 and 19), and Supplement, (Doc. 20), that the “Motion is moot and has nothing to do with where we are today,” (Doc. 16, p. 5), and the Motion to Dismiss “has no merit” (Doc. 20, p. 3).
Plaintiff does not explain why the RRB's Motion is moot or how the Motion has “nothing to do with where we are today.” (Doc. 16, p. 5). In the paragraphs preceding this conclusory statement, Plaintiff relists the facts in his Complaint, with the addition of new correspondence that occurred after he filed this action. (Doc. 16). This is also where Plaintiff states that the railroad has not informed Attorney Simpson, counsel for the RRB, of “the current status of Plaintiffs [sic] attempts and reconsiderations to resolve all issues” and states, “Defendants [sic] ninety days expired on June, 29, 2011” in an apparent reference to 45 U.S.C. § 355(f). (Doc. 16, p. 4).
These dates include a May 26, 2022 reconsideration decision letter from the RRB, Plaintiff's June 15, 2022 reconsideration request, a notice from the RRB dated August 9, 2022 informing Plaintiff of the adjustment payment he is owed, and Plaintiff's September 13, 2022 reconsideration of the August 9, 2022 notice. (Doc. 16, ¶¶ 5-9).
It is unclear what, if any, argument Plaintiff is trying to make here. If Plaintiff is trying to argue the motion is moot because the statutory provisions have somehow been met because “Defendants [sic] ninety days expired” that argument fails. 45 U.S.C. § 355(f) lays out a timeline a claimant must follow to obtain review of a final decision. It does not impose a deadline on the RRB. Furthermore, even if the statutory requirements were met, this Court still cannot hear Plaintiff's review claim. The statute clearly states Plaintiff may “obtain a review of any final decision of the Board by filing a petition for review . . . in the Court of Appeals for the Circuit in which the claimant or other party resides . . . in the United States Court of Appeals for the Seventh Circuit or in the United State Court of Appeals for the District of Columbia.”
Section 8 of the RRA incorporates 45 U.S.C. § 355(f) and extends the time a claimant has to file to one year. 45 U.S.C. § 231g.
Plaintiff likewise does not explain why the Motion “has no merit.” (Doc. 20, p. 3). In the paragraphs preceding this conclusory statement Plaintiff again relists the facts in his Complaint, states that he found “the smoking gun” in the form of his railroad employment file which he uses to detail how much he was paid and the shortages that occurred over numerous years. (Doc. 20). After concluding there is no merit, Plaintiff states, “[the] railroad never had any interest in ever resolving these issues.” (Doc. 20, p. 3). This is not responsive to RRB's argument that this Court is statutorily deprived of subject matter jurisdiction to hear his claim seeking review of the RRB's decision.
Even construing all facts in favor of Plaintiff, the Court agrees with the RRB that 45 U.S.C. § 355(f) and 45 U.S.C. § 231g apply and deprive this Court of subject matter jurisdiction to hear Plaintiff's claim for review of the RRB's determinations that his workers' compensation and survivor benefit payments should be deducted from his annuity. Therefore it is recommended the RRB's Motion to Dismiss for Lack of Subject Matter Jurisdiction, (Doc. 15), be granted.
C. Transfer
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court . . . in which the action or appeal could have been brought at the time it was filed or noticed . . . .
As the Court finds it does not have subject matter jurisdiction over this action, it must consider whether transfer is appropriate as opposed to dismissal.
“To transfer pursuant to § 1631, a court must find that (1) the action ‘could have been brought' in the transferee [court] and (2) transfer is in the interest of justice.” The Court is unable to find that this action, when filed, “could have been brought” in one of the appropriate U.S. Courts of Appeals specified in 45 U.S.C. § 355(f) because the Complaint does not demonstrate administrative exhaustion.
Kurzweil v. Amtrak, No. 19-19388 (MAS) (DEA), 2020 WL 5760423, at *4 (D.N.J. Sept. 28, 2020).
The RRB argues in its Motion to Dismiss that even if Plaintiff had brought this case in an appropriate U.S. Court of Appeal, that court would lack subject matter jurisdiction as Plaintiff has not exhausted all available administrative remedies. (Doc. 17). As discussed above, 45 U.S.C. § 355(f) limits judicial review of RRB decisions to three circuits and requires a plaintiff to exhaust all administrative remedies before they can seek such judicial review. The RRA incorporates that section of the RUIA but expands the time for filing a petition for review. Thus, in order for one of the three relevant circuit courts to have jurisdiction to hear Plaintiff's claim for review, Plaintiff must, among other things, show that he has exhausted all of his administrative remedies.
“Every appellant shall have a right to a final appeal to the Railroad Retirement Board from any decision of a hearings officer by which he or she claims to be aggrieved.” This final appeal to the Railroad Retirement Board is how a claimant exhausts administrative remedies within the Board and receives a final decision that they may then seek judicial review of in one of the three appropriate U.S. Courts of Appeals.
“For all claims under the Railroad Retirement Act and Railroad Unemployment Insurance Act there is a three-stage review and appeals process within the RRB. A person dissatisfied with the initial decision on his or her claim may first request a review by the RRB's reconsideration section. He or she has 60 days from the date on which notice of the initial decision is mailed to him or her to file a written request for reconsideration. This step is mandatory before an appeal may be filed with the RRB's Bureau of Hearings and Appeals.” Q&A: RRB Appeals Procedures, U.S. Railroad Retirement Board, (October 2021), https://www.rrb.gov/NewsRoom/NewsReleases/RRBAppealsProcedures. “If dissatisfied with the reconsideration or waiver decision on a retirement, disability, survivor, unemployment or sickness claim, a person may appeal to the RRB's Bureau of Hearings and Appeals, which is independent of those units responsible for initial and reconsideration decisions. An appellant has 60 days from the date on which notice of the reconsideration or waiver decision notice is mailed to the claimant to file an appeal.” Id. “If not satisfied with the Bureau of Hearings and Appeals' decision, an appellant may further appeal to the three-member Board, which heads the agency, within 60 days from the date on which notice of the Bureau of Hearings and Appeals' decision is mailed to the appellant.” Id. “Appellants dissatisfied with the three-member Board's final decision may then file a petition with the appropriate U.S. Court of Appeals to review the Board's decision. In cases involving retirement, disability or survivor claims, the petition for review must be filed within one year after notice of the three-member Board's decision has been mailed to the appellant. In cases involving claims for unemployment or sickness benefits, the petition for review must be filed within 90 days of the Board's decision notice.” Id.
In neither his Complaint nor his Briefs in Opposition and Supplement does Plaintiff allege facts suggesting that he has exhausted his administrative remedies or point to such a final decision. At the time of filing his Complaint Plaintiff was, as he shows in his Complaint, still in the process of exhausting the RRB's administrative appeals process. Plaintiff speaks of a November 20, 2020 letter informing him his survivor benefit was being deducted from “his railroad retirement benefit.” (Doc. 1, ¶ 31). Plaintiff then states that “on or about January 8, 2021, Plaintiff file[d] an appeal of Defendant's letter dated November 20, 2020.” (Doc. 1, ¶ 33). It appears that this “appeal” was still pending when Plaintiff filed this lawsuit on March 18, 2022, as in his Complaint he does not clearly discuss a decision he received in response to his request.
If Plaintiff believes he has received a final decision that would confer jurisdiction upon one of the appropriate U.S. Courts of Appeals he may raise that in an objection to this Report and Recommendation, should he make one.
Plaintiff refers to his reconsideration request as an “appeal” in his Complaint. Plaintiff sent a second copy of the January 8, 2021 appeal to the RRB on or about February 5, 2021 and received a letter from the RRB informing him they had received his request for reconsideration. (Doc. 1, ¶¶ 33-35).
In his Brief in Opposition, (Doc. 16), Plaintiff appears to further indicate that he is still exhausting his administrative remedies. Plaintiff states in his Brief in Opposition that “on or about June 15, 2022 . . . Plaintiff faxes 5 pages [to Defendant] for a reconsideration . . .” in response to the May 26, 2022 letter from the RRB.(Doc. 16, ¶ 6). Plaintiff also states that “on or about September 13, 2022 Plaintiff sent Defendant a reconsideration in regards to notice from Defendant dated August 9, 2022.” (Doc. 16, ¶ 9) (Doc. 16-14). It thus appears Plaintiff is still at the exhausting his administrative remedies within the RRB.
The May 26, 2022 letter notified Plaintiff that the Reconsideration Section had completed reviewing his annuity reduction and found it was incorrectly calculated and had returned his file to the adjudication unit for corrective action. (Doc. 16-5). It is unclear what reconsideration request this letter was in response to.
The August 9, 2022 letter notified Plaintiff he was entitled to an adjustment payment of $2,165.00 as his worker's compensation deductions were recalculated. (Doc. 16-1). Plaintiff calls his September 13, 2022 request a reconsideration request, however the form he uses is for a claimant appeal to the Bureau of Hearings and Appeals, the second step in the RRB's administrative appeal process.
Given the apparent lack of exhaustion and Plaintiff's failure to otherwise provide the Court with a clear copy of a final decision, or to allege facts suggesting he has a final decision from the RRB, the Court finds any of the statutorily appropriate U.S. Courts of Appeals lack jurisdiction to hear Plaintiff's claim. As the Court does not find this civil action “could have been brought at the time it was filed or noticed” in one of the three appropriate U.S. Courts of Appeals, transfer of this case to one of those courts is not proper.
Pursuant to 45 U.S.C. § 355(f) and 45 U.S.C. § 231g this Court does not have jurisdiction over Plaintiff's claim for review of the RRB's determinations that his workers' compensation and survivor benefit payments should be deducted from his annuity. From the current pleadings it appears transfer is not appropriate in this case as the appropriate U.S. Courts of Appeals also lack jurisdiction over Plaintiff's claim because Plaintiff has not exhausted his RRB administrative remedies.
V. RECOMMENDATION
It is RECOMMENDED that:
(1) Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 15) be GRANTED without prejudice and this case DISMISSED.
(2) Any pending Motions be dismissed as MOOT.
(3) The Clerk of Court should be instructed to close this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.