* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40631

Summary Calendar

ANDY L. SMITH

Plaintiff - Appellant

v.

AMERICAN POSTAL WORKERS UNION

Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 6:07-cv-00347

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Upon his return from active military duty in 2005, Andy Smith sought

reemployment with the United States Postal Service. However, disputes arose

over his proper employment position, his seniority, and his backpay at the

USPS. Smith, a member of the American Postal Workers Union, pursued

grievances against the USPS. However, believing that the Union did not fairly

represent him in these grievances, Smith changed his target and filed a pro se

United States Court of Appeals

Fifth Circuit

F I L E D

January 12, 2009

Charles R. Fulbruge III

Clerk
No. 08-40631

1 Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, 354 F.3d 348, 351

(5th Cir. 2003).

2 Atkinsonv.SinclairRefining Co., 370 U.S. 238, 247-48 (1962)(“When Congress passed

[the Labor Management Relations Act], it declared its view that only the union was to be made

to respond for union wrongs, and that the union members were not to be subject to levy.”).

3 See McConathy v. Dr. Pepper / Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)

(“Dismissal is appropriate ‘only if it appears that no relief could be granted under any set of

facts that could be proven consistent with the allegations.’”) (quoting Rubinstein v. Collins, 20

F.3d 160, 166 (5th Cir. 1994)).

4 Newsome v. EEOC, 301 F.3d 227, 230 (5th Cir. 2002).

2

suit againstthe Union and a number of Union members. Smith’s third amended

complaint claims, in part, breach of the Union’s duty of fair representation,

violation of the prohibition of political recommendations for employment within

the postal service, violation of the National Labor Relation Act, discrimination

based on race and sex, and breach of contract. 

We review the district court’s dismissal of Smith’s case de novo.1 The

district court did not err in dismissing the claims against the individual

defendants as they were not proper defendants.2 We also affirm the district

court’s dismissal of Smith’s suit against the Union for failure to state a claim on

any of the alleged causes of action because, as stated in the magistrate’s report,

Smith’s complaintis a combination of conclusory allegations and facts,that even

when taken as true, are not sufficient as a matter of law to entitle him to relief.3

In so ruling, the district court, despite Smith’s contention to the contrary,

considered the affidavits and other documents attached to the complaint, as

made clear in the magistrate’s report. Smith also claims that the district court

erred by refusing to grant his motion to transfer his case to another magistrate

for pretrial proceedings. The consent of the parties is not required for a district

courtto refer a motion to dismiss to a magistrate under 28 U.S.C. § 636(b)(1)(B).4

Moreover, the magistrate judge generously considered Smith’s motion as a
No. 08-40631

5 U.S. v. Merkt, 794 F.2d 950, 960 (5th Cir. 1986).

3

motion to recuse under 28 U.S.C. § 144 and did not abuse her discretion in

finding no personal bias against Smith.5 AFFIRMED.