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ROBERT L. PERKINS and JUDY A. PERKINS, Plaintiffs v. UNITED STATES OF AMERICA, Defendant.

ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION AND GRANTING DEFENDANT'S MOTION TO DIMISS

MARCIA CRONE, Magistrate Judge

This action is referred to a United States magistrate judge pursuant to 28 U.S.C. § 636 (b)(1)(B), and "Local Rules for the Assignment of Duties to United States Magistrate Judges," E.D. Tex. R. App. B (Rule 1(D)(1)). The magistrate judge recommends that the court grant defendant's motion to dismiss based on lack of subject-matter jurisdiction.

Plaintiffs filed no objections. The United States, while concurring with the recommendation that its motion be granted, objects to the magistrate judge's underlying analysis which concluded that this court lacks subject-matter jurisdiction because plaintiffs failed to satisfy jurisdictional prerequisites before filing suit. The United States argues that federal district courts never can exercise jurisdiction in suits of this nature. Thus, there are no jurisdictional prerequisites for plaintiffs to satisfy and successfully invoke jurisdiction. In support of its objection, the United States cites three unpublished cases and a Treasury Regulation that support its argument.

In ordinary circumstances, a party's timely objection to a magistrate judge's report requires a district judge to make a de novo determination of those portions of the magistrate judge's report or specified proposed findings or recommendations to which written objection is made. 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72(b). Such review is not required here because the action must be dismissed for lack of subject-matter jurisdiction under either view. It is unnecessary and therefore inappropriate for this court to address what appears to be a split of authority between the authorities relied upon by the magistrate judge and the unpublished cases and treasury regulation cited by the United States. It is therefore

ORDERED that the report of the magistrate judge is ADOPTED. It is further

ORDERED that defendant's motion to dismiss (Docket No. 3) is GRANTED.

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PERKINS v. U.S
(May 5, 2004)