INVENTORY OF UNITED STATES MAGISTRATE JUDGE DUTIES

TABLE OF CONTENTS

Introduction - Inventory of United States Magistrate Judge Duties

§1 Commissioner Duties Under 28 U.S.C. § 636(a)(1): Felony Preliminary

Proceedings

§2 Extradition Proceedings and Other Duties Under § 636(a)

§3 Disposition of Petty Offense and Class A Misdemeanor Cases Under 28 

U.S.C. § 636(a) and 18 U.S.C. § 3401

§4 Non-Case-Dispositive Matters Under 28 U.S.C. § 636(b)(1)(A)

§5 Case-Dispositive Matters Under 28 U.S.C. § 636(b)(1)(B)

§6 Designation a Special Master Under 28 U.S.C. § 636(b)(2)

§7 Additional Duties Under 28 U.S.C. § 636(b)(3)

§8 Civil Consent Authority Under 28 U.S.C. § 636(c)

§9 Contempt Authority Under 28 U.S.C. § 636(e)

Appendix A - Standard of Review in Bail and Detention Proceedings under the 

Bail Reform Act

Appendix B - De Novo Determination Under 28 U.S.C. § 636(b)(1)(C)

Appendix C - Waiver Under 28 U.S.C. § 636(b)(1)(B)

December 2013 INVENTORY
INVENTORY OF UNITED STATES MAGISTRATE JUDGE DUTIES

INTRODUCTION

A United States magistrate judge is a judicial officer of the United States district court. The

authority that a magistrate judge exercises is the jurisdiction of the district court itself, delegated to

the magistrate judge by the district judges for the court under governing statutory authority and local

rules of court.

Magistrate judges serve as adjuncts to the Article III district courts and not as Article I judges. 

Congress has clearly provided that a magistrate judge’s role is to assist Article III judge rather than

serve as a lower tier court. The Judicial Conference of the United States has expressed the view that

Congress should establish all causes of action in the district court and avoid mandating the reference

of particular types of cases or proceedings to magistrate judges. 

The statutory authority of United States magistrate judges is set forth in the Federal Magistrates Act

of 1968 (Pub. L. No. 90-578), as amended. The specific provisions of the Act that govern magistrate

judge authority are found at 28 U.S.C. § 636 and 18 U.S.C. § 3401. In addition, other statutory

grants of authority to magistrate judges appear throughout the United States Code.

The INVENTORY OF UNITED STATES MAGISTRATE JUDGE DUTIES is the result of a recommendation

of the Federal Courts Study Committee to Congress in1990 that a catalog of all cases relating to the

authority of magistrate judges be compiled and made available to district judges and magistrate

judges. This is the fourth edition of the INVENTORY, updating and replacing earlier editions

published in 1991, 1995, and 1999. 

Court decisions discussing various duties referred to magistrate judges are listed by circuit. There

are hyperlinks to Westlaw for case, rule, and statutorycitations. The INVENTORYalso lists duties that

have not been addressed specifically in case law or by statute that some districts are known to refer

to magistrate judges. 

Questions concerning the INVENTORYand magistrate judge authority in general should be addressed

to the Judicial Services Office. 

December 2013 INVENTORY
§ 1. COMMISSIONER DUTIES UNDER 28 U.S.C. § 636(a)(1): FELONY

PRELIMINARY PROCEEDINGS

A. Arrest Warrants, Summonses, & Acceptance of Criminal Complaints [Fed.

R. Crim. P. 3 & 4].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Search Warrants [Fed. R. Crim. P. 41]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Scope of Magistrate Judge Authority.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2. Magistrate Judge Authority to Rule on Motion to Return Property Under

Fed. Rule Crim. P. 41 Where No Underlying Criminal or Civil Case Has

Been Filed in the District Court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. Initial Appearances [Fed. R. Crim. P. 5]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

D. Appointment and Assignment of Counsel [Fed. R. Crim. P. 44 & 

18 U.S.C. § 3006A]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

E. Preliminary Hearings and Examinations [Fed. R. Crim. P. 5.1 and \

18 U.S.C. § 3060]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

F. Removal Proceedings [Fed. R. Crim. P. 40].. . . . . . . . . . . . . . . . . . . . . . . . . . . 14

G. Release or Detention Orders Under the Bail Reform Act

[18 U.S.C. § 3141 et seq.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1. Authority of Magistrate Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2. Detention of Material Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

H. Initial Appearances and Preliminary Hearings for Defendants Where

Government is Seeking Revocation or Modification of Supervised Release or

Probation [Fed. R. Crim. P. 32.1]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

I. Other Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
§ 1. COMMISSIONER DUTIES UNDER 28 U.S.C. § 636(a)(1): FELONY

PRELIMINARY PROCEEDINGS 

Section 636(a) of Title 28 states in relevant part: 

Each United States magistrate judge serving under this chapter shall have within the

district in which sessions are held by the court that appointed the magistrate judge,

at other places where the court may function, and elsewhere as authorized by law--

(1) all powers and duties conferred or imposed upon United States commissioners

by law or by the Rules of Criminal Procedure for the United States District Courts;

The Federal Magistrates Act of 1968 established the United States magistrate judge system, building

upon and superseding the 175-year old United States commissioner system. A major area of

responsibilityforUnited States commissioners were preliminaryproceedings in federal felonycases. 

Section 636(a) establishes that felonypreliminaryproceedings are basic duties performed byvirtually

all United States magistrate judges. What follows is a discussion of the various felony preliminary

proceedings assigned to magistrate judges under this provision. 

A. Arrest Warrants, Summonses, & Acceptance of Criminal Complaints [Fed. R. Crim.

P. 3 & 4]

Federal Rule of Criminal Procedure 3 states:

The complaint is a written statement of the essential facts constituting the offense

charged. It must be made under oath before a magistrate judge, or, if none is

reasonably available, before a state or local judicial officer.

Federal Rule of Criminal Procedure 4(a) further provides:

If the complaint or one or more affidavits filed with the complaint establish probable

cause to believe that an offense has been committed and that the defendant

committed it, the judge must issue an arrest warrant to an officer authorized to

execute it.... 

Together, these rules establish the authority of magistrate judges to accept criminal complaints and

to issue arrest warrants and summonses on such complaints.

2d Circuit:

Martel v. Town of South Windsor, 562 F. Supp. 2d 353 (D. Conn. 2008)

A reviewing court should pay great deference to the determination of a neutral magistrate

judge that probable cause existed to issue a warrant. 

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4th Circuit:

United States v. Doe, 564 F. Supp. 2d 480 (D. Md. 2008)

A defendant’s waiver of his right to a speedy initial appearance under Fed. R. Crim. P. 5 did

not relieve the government of its responsibility to bring the defendant “forthwith to the

nearest magistrate judge” pursuant to the specific language of the arrest warrant signed by

the magistrate judge. (Opinion by a magistrate judge.)

Emswiler v. McCoy, 622 F. Supp. 786 (S.D. W. Va. 1985)

A magistrate judge is entitled to judicial immunityfor issuing an arrest warrant and certifying

that a complaint for summons was filed under oath.

7th Circuit:

United States v. Hondras, 296 F. 3d 601 (7th Cir. 2002)

An arrest warrant signed by a deputy clerk was nonetheless valid where a magistrate judge

made an ultimate determination of probable cause to justify issuance of the warrant.

8th Circuit:

United States v. Mims, 812 F. 2d 1068 (8th Cir. 1987)

A magistrate judge's probable cause determination is entitled to substantial deference. In

applying the reasoning in Illinois v. Gates, 462 U.S. 213 (1983), the reviewing court must

determine whether the magistrate judge had a substantial basis to support his or her decision

that probable cause existed to issue an arrest warrant.

9th Circuit:

United States v. Bueno-Vargas, 383 F. 3d 1104 (9th Cir. 2004), cert. denied, 543 U.S. 1129

(2005)

A magistrate judge did not err in relying on a sworn statement faxed to the magistrate judge

by law enforcement officers to determine probable cause to detain an arrested defendant. 

Use of a faxed sworn statement as the basis for issuing a complaint satisfied the Fourth

Amendment’s requirement of an “Oath or affirmation” supporting probable cause, thereby

legitimizing the defendant’s detention for more than 48 hours before his initial appearance.

B. Search Warrants [Fed. R. Crim. P. 41]

Federal Rule of Criminal Procedure 41(b) states:

(b) Authority to Issue a Warrant. At the request of a federal law enforcement officer or

an attorney for the government:

(1) a magistrate judge with authority in the district — or if none is reasonably

available, a judge of a state court of record in the district — has authority to issue a warrant

to search for and seize a person or property located within the district;

(2) a magistrate judge with authority in the district has authority to issue a warrant

for a person or property outside the district if the person or property is located within the

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district when the warrant is issued but might move or be moved outside the district before

the warrant is executed;

(3) a magistrate judge — in an investigation of domestic terrorism or international

terrorism — with authority in any district in which activities related to the terrorism may

have occurred, has authority to issue a warrant for a person or property within or outside that

district; and 

(4) a magistrate judge with authority in the district has authority to issue a warrant

to install within the district a tracking device; the warrant may authorize use of the device

to track the movement of a person or property located within the district, outside the district,

or both; and

(5) a magistrate judge having authority in any district where activities related to the

crime may have occurred, or in the District of Columbia, may issue a warrant for property

that is located outside the jurisdiction of any state or district, but within any of the following: 

(A) a United States territory, possession, or commonwealth; 

(B) the premises--no matter who owns them--of a United States diplomatic

or consular mission in a foreign state, including any appurtenant building,

part of a building, or land used for the mission's purposes; or 

(C) a residence and any appurtenant land owned or leased by the United

States and used by United States personnel assigned to a United States

diplomatic or consular mission in a foreign state.

Rule 41 establishes a basic duty of magistrate judges to issue search warrants after the review of

supporting applications and affidavits. The authority to issue search and arrest warrants extends not

only to criminal search warrants sought under the dictates of the Fourth Amendment, Fed. R. Crim.

P. 4 and Fed. R. Crim. P. 41, but also to administrative search and inspection warrants requested

under a variety of federal statutes.

As noted, Fed. R. Crim. P. 41 allows “a federal law enforcement officer or an attorney for the

government” to request a search warrant. For purposes of Rule 41, a federal law enforcement officer

is defined as “a government agent...who is engaged in enforcing the criminal laws and is within any

category of officers authorized by the Attorney General to request a search warrant.” (See, Fed. R.

Crim. P. 41). The phrase “attorney for the government” is defined in Fed. R. Crim. P. 1.

A large number of federal agencies are authorized to seek search warrants under criminal and

administrative investigation statutes. Certain agencies also have the authority to seize private

property under civil and criminal forfeiture statutes. A full listing of all the statutes authorizing the

use of search and seizure warrants by federal agencies is outside the scope of this study. See 28

C.F.R. § 60.2 and 28 C.F.R. § 60.3 for lists of the federal law enforcement officers and agencies

authorized to request warrants. 

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1. Scope of Magistrate Judge Authority

Supreme Court:

Illinois v. Gates, 462 U.S. 213 (1983)

A magistrate judge's task is simply to make a practical, common-sense decision whether,

given all the circumstances set forth in the affidavit, including the "veracity" and "basis of

knowledge" of persons supplying hearsay information, there is a fair probability that

contraband or evidence of a crime will be found.

2d Circuit:

United States v. Hunter, 13 F. Supp.2d 574 (D. Vt. 1998)

In considering an application for a search warrant, a magistrate judge makes a practical,

common sense decision whether under the totality of the circumstances there is a fair

probability that evidence of a crime will be found in a particular place. A reviewing court

should accord great deference to the magistrate judge's decision. Although the warrant

issued by the magistrate judge in the case at bar, which permitted the search of all of the

defendant's computers, was overbroad, it was executed in good faith and the evidence found

would not be suppressed.

3d Circuit:

In re Search of Scranton Housing Authority, 487 F. Supp. 2d 530 (M.D. Pa. 2007)

A magistrate judge did not have authority under the Federal Magistrates Act to rule on a

party’s motion under Fed. R. Crim. P. 41 to unseal the application and affidavit in support

of a search warrant and to return property seized after execution of the warrant. Such rulings

did not constitute “powers and duties conferred or imposed upon United States

commissioners” under 28 U.S.C. § 636(a).

United States v. Slaey, 433 F. Supp. 2d 494 (E.D. Pa. 2006)

A magistrate judge’s order authorizing the government to execute a search warrant without

providing copies of the attachments to the warrant to the property owner violated Fed. R.

Crim. P. 41 and warranted suppression of any evidence seized pursuant to the warrant.

5th Circuit:

United States v. Davis, 226 F. 3d 346 (5th Cir. 2000), cert. denied, 531 U.S. 1181 (2001)

When the written affidavit is adequate to support issuance of the warrant, the warrant will

not be invalidated because the magistrate judge elicited statements that were not recorded.

6th Circuit:

United States v. Chaar, 137 F. 3d 359 (6th Cir. 1998)

A telephonic search warrant issued by a magistrate judge under Fed. R. Crim. P. 41 was

valid, even when the magistrate judge lost the tape recording of the warrant procedure

mandated by the rule. The defendant could not demonstrate that loss of the recording was

intentional or prejudicial.

December 2013 5 INVENTORY
United States v. Campbell, 525 F. Supp. 2d 891 (E.D. Mich. 2007)

A telephonic request for a search warrant was either not recorded by the magistrate

judge or was lost. This violation of Fed. R. Crim. P. 41 was not, however, a basis for

suppression of the evidence. The mistake was made by the magistrate judge or staff, there

was no evidence of intentional evasion of the recording requirement, and there was enough

extrinsic evidence to allow the reviewing court to determine that probable cause existed to

issue the warrant.

United States v. Bailey, 193 F. Supp. 2d 1044 (S.D. Ohio 2002)

A package was moved from the Southern District of Ohio to the Northern District of Ohio.

Upon its arrival in the Northern District, the package was examined by a canine unit, an

affidavit for a search warrant was prepared, and a warrant was issued to search the package. 

The affiant (a postal inspector who facilitated movement of the package) did not know until

after the search warrant issued that the county to which the package was originally mailed

was not in the Northern District of Ohio. Furthermore, the affiant did not know of any canine

unit that was locally available, and there was no factual basis to conclude that the package

was moved for the purpose of forum shopping or judge selection. As a result, the search

warrant was not unlawfully issued, and the property to be searched was within the district

served by the issuing magistrate judge in accordance with Fed. R. Crim. P. 41.

7th Circuit:

United States v. Walker, 237 F. 3d 845 (7th Cir. 2001)

A magistrate judge’s failure to place an expiration date on a search warrant for a rented

vehicle did not invalidate the warrant that was executed within hours of its issuance,

particularly where law enforcement officers had no reason to believe that the information in

the warrant was stale. 

In re Search of 3817 W. West End, First Floor Chicago, Illinois 60621, 321 F. Supp. 2d 953

(N.D. Ill. 2004)

A magistrate judge had authority to require the government to provide a written protocol

describing how agents would search a seized computer before issuing the search warrant. 

(Opinion by a magistrate judge.)

In re Search of 4330 N. 35th St., Milwaukee, Wis., 142 F.R.D. 161 (E.D. Wis. 1992)

Under Fed. R. Crim. P. 41 and local rules, a magistrate judge not only had authority to issue

a search warrant, but also had authority to rule on a defendant's motion for return of seized

property without an independent civil or criminal action pending.

(Opinion by a magistrate judge.)

8th Circuit:

United States v. Mutschelknaus, 564 F. Supp. 2d 1072 (D.N.D. 2008)

A forensic analysis of the defendant’s computer and electronic storage media took 

place within a reasonable time after execution of the search warrant and did not violate 

the Fourth Amendment or Fed. R. Crim. P. 41, which requires that a search warrant be

executed within 10 days of its issuance. The computer and storage media were seized within

December 2013 6 INVENTORY
the 10-day time limit established in the search warrant, and the forensic analysis took place

within the 60-day period granted by the magistrate judge.

 

9th Circuit:

In re Search of Yahoo, Inc., 2007 WL 1539971 (D. Ariz. 2007)

18 U.S.C. § 2703(a) authorizes a district court, located in the district where the alleged crime

occurred, to issue search warrants for the production of electronically-stored evidence in

another district. Fed. R. Crim. P. 41(b) does not limit the authority of a district court to issue

out-of-district warrants under §2703(a) because Rule 41(b) is not procedural in nature and

therefore does not apply to §2703(a). (Opinion by a magistrate judge).

11th Circuit:

United States v. McCoy, 678 F. Supp. 2d 1336 (M.D. Ga. 2009)

A district judge ruled that a magistrate judge’s denial of the government’s search warrant

application in one district could not be used by a defendant as res judicata to justify dismissal

of the defendant’s indictment on obscenity charges in another district. [See Information

Memorandum No. 316 for a more detailed summary of this case.]

In re Search Warrant, 2005 WL 3844032 (M.D. Fla. 2005)

A district court may issue out-of-district warrants pursuant to 18 U.S.C. § 2703(a), using the

procedures described in Fed. R. Crim. P. 41 in non-terrorism-related cases. Fed. R. Crim.

P. 41, because it is not procedural, does not impair the ability of a district court to issue outof-district warrants under 18 U.S.C. § 2703(a).

2. Magistrate Judge Authority to Rule on Motion to Return Property Under Fed.

Rule Crim. P. 41 Where No Underlying Criminal or Civil Case Has Been Filed

in the District Court.

Federal Rule of Criminal Procedure 41(g) allows aggrieved persons to seek the return of property

seized through the execution of search warrants, stating:

(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of

property or by the deprivation of property may move for the property’s return. The motion

must be filed in the district where the property was seized. The court must receive evidence

on any factual issue necessary to decide the motion. If it grants the motion, the court must

return the property to the movant, but may impose reasonable conditions to protect access

to the property and its use in later proceedings.

In the absence of an underlying criminal case or a civil forfeiture proceeding, courts have disagreed

whether magistrate judges have authority under Rule 41(g) to unilaterally rule on such motions. 

2d Circuit:

United States v. Douleh, 220 F.R.D. 391 (N.D.N.Y. 2003)

A district court judge adopted a magistrate judge’s report and recommendation where the

magistrate judge concluded he had authority to issue a report and recommendation on a

defendant’s motion to return property under Fed. R. Crim. P. 41 as a pretrial motion under

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28 U.S.C. § 636(b) where both criminal and civil forfeiture cases were pending against the

defendant and the district judge had specifically referred the motion to the magistrate judge.

In dicta, the magistrate judge suggested that there might be instances where a magistrate

judge could issue a dispositive final order on such a motion.

3d Circuit:

In re Search of Scranton Housing Authority, 487 F. Supp. 2d 530 (M.D. Pa. 2007)

A magistrate judge did not have authority under the Federal Magistrates Act to rule on a 

party’s motion under Fed. R. Crim. P. 41 to unseal the application and affidavit in support

of a search warrant and to return property seized after execution of the warrant where no

underlying criminal or civil actions had been filed in the district court. Such rulings did not

constitute “powers and duties conferred or imposed upon United States commissioners”

under 28 U.S.C. § 636(a). If a separate civil action were filed for the return of the property,

the magistrate judge would only have authority to rule if the parties consented to the

authority of the magistrate judge under § 636(c).

6th Circuit:

In re Search of S & S: Custom Cycle Shop, 372 F. Supp. 2d 1048 (S.D. Ohio 2003)

Where no criminal proceeding existed, other than the execution of a search warrant, a

magistrate judge did not have jurisdiction to rule on the plaintiff’s motion under Fed. R

Crim. P. 41(e) [now Rule 41(g)], which sought a purely civil remedy. In order to obtain the

return of seized items and to unseal the search warrant affidavit, the plaintiff must file an

independent civil action.

7th Circuit:

In re Search of 4330 N. 35 St., Milwaukee, Wis., 142 F.R.D. 161 (E.D. Wis. 1992) th

Under Fed. R. Crim. P. 41 and local rules, a magistrate judge not only had authority to issue

a search warrant, but also had authority to rule on the defendant’s motion for the return of

seized property without an independent civil or criminal action pending. (Opinion by a

magistrate judge).

Matter of Search of 6731 KennedyAve., Hammond, Indiana, 131 F.R.D. 149 (N.D. Ind.1990)

A magistrate judge did not have authority to rule upon a motion to return property seized

pursuant to a search warrant under Fed. R. Crim. P. 41 where there was no underlying

criminal or civil case pending in the court. If a post-indictment Rule 41(e) [now 41(g)]

motion were filed, jurisdiction may be conferred on a magistrate judge by an appropriate

order of the district court entered pursuant to 28 U.S.C. § 636(b), or, it the parties consent

under 28 U.S.C. § 636(c). (Opinion by a magistrate judge).

11th Circuit:

In re Search of a Single-Family Residence, 2007 WL 2114286 (M.D. Fla. 2007)

Where an individual moved for the return of property seized pursuant to a search warrant 

under Fed. R. Crim. P. 41, but no criminal case had yet been filed in the district court, a

district judge adopted a magistrate judge’s report recommending that the underlying

miscellaneous case be dismissed without prejudice to the filing of an independent civil

action. The magistrate judge concluded that a motion for return of property under Fed. R.

December 2013 8 INVENTORY
Crim. P. 41 could not be pursued in the district court unless an underlying criminal case was

initiated or a separate civil case for the return of property was filed. (Opinion by a

magistrate judge).

C. Initial Appearances [Fed. R. Crim. P. 5]

Federal Rule of Criminal Procedure 5 states in relevant part:

(a) In General.

(1) Appearance Upon an Arrest.

(A) A person making an arrest within the United States must take the defendant

without unnecessary delay before a magistrate judge ..., unless a statute provides

otherwise.

(B) A person making an arrest outside the United States must take the defendant

without unnecessary delay before a magistrate judge, unless a statute provides

otherwise.

At the initial appearance, defendants are informed of their rights and the charges against them,

provided counsel if necessary, released on bail or held in detention, and assigned a date for a

preliminary examination. Rule 58(b)(2) of the Federal Rules of Criminal Procedure governs initial

appearances in misdemeanor and petty offense cases. 

 2d Circuit:

United States v. Coiscou, 793 F. Supp. 2d 680 (S.D.N.Y. 2011)

A magistrate judge ruled that he had authority to dismiss a felony complaint for lack of

probable cause at or after an initial appearance under Fed. R. Crim. P. 5. [See Information

Memorandum No. 321 for a more detailed summary of this case.]

United States v. Turner, 367 F. Supp. 2d 319 (E.D.N.Y. 2005)

A magistrate judge ordered the government to notify alleged victims of their rights to appear

at preliminary proceedings under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771,

after the initial appearance occurs under Fed. R. Crim. P. 5. (Opinion by a magistrate judge.)

3d Circuit:

United States v. De Graaff, 242 Fed. Appx. 828 (3d Cir. 2007)

Even though a magistrate judge failed to comply with the procedures governing initial

appearances in misdemeanor cases set forth in Fed. R. Crim. P. 58, the district court’s

decision to affirm the defendant’s conviction was not erroneous because there was a “high

probability” that the error did not contribute to the conviction.

Gov. of the Virgin Islands v. Leonard A., 922 F. 2d 1141 (3d Cir. 1991)

A decision to order a pretrial psychiatric examination in a felony matter is within the

magistrate judge's discretion. The court applies an abuse of discretion standard in reviewing

the decision.

December 2013 9 INVENTORY
4th Circuit:

United States v. Doe, 564 F. Supp. 2d 480 (D. Md. 2008)

A magistrate judge ruled that a defendant’s waiver of his right to a speedy initial appearance

under Fed. R. Crim. P. 5 did not relieve the government of its responsibility to bring the

defendant “forthwith to the nearest magistrate judge” pursuant to the specific language of the

arrest warrant signed by the magistrate judge. (Opinion by a magistrate judge.)

9th Circuit:

United States v. Howard, 480 F. 3d 1005 (9th Cir. 2007)

A district-wide policy of requiring pre-trial detainees making their first appearance before

a magistrate judge to wear leg shackles, which was implemented by the United States

Marshal’s Service after consulting with the magistrate judges, was adequately justified. 

Security concerns arose because of the district’s practice of conducting pre-trial proceedings

in a large courtroom in the presence of multiple defendants, where risks of conflict, violence,

or escape were heightened; the policywas less restrictive than a prior policy that had required

full restraints; and individual defendants had the option of moving the court for removal of

the shackles.

United States v. Martinez-Leon, 565 F. Supp. 2d 1131 (C.D. Cal. 2008)

A magistrate judge ruled that a defendant indicted in the Eastern District of Pennsylvania,

and arrested in the Central District of California would not be permitted to challenge

identification testimony by a law enforcement officer through a motion to suppress at the

defendant’s identity hearing under Fed. R. Crim. P. 5 and Fed. R. Crim. P. 5.1. (Opinion by

a magistrate judge.)

United States v. Murray, 197 F.R.D. 421 (S.D. Cal. 2000)

A magistrate judge had authority to deny a defendant's motion to conduct an initial

appearance under Fed. R. Crim. P. 5 in the hospital where the defendant was admitted for

treatment. (Opinion by a magistrate judge.)

D. Appointment and Assignment of Counsel [Fed. R. Crim. P. 44 & 18 U.S.C. § 3006A]

Federal Rule of Criminal Procedure 44 and 18 U.S.C. § 3006A set forth the procedures for the

appointing counsel for defendants in federal criminal cases. In particular, § 3006A(b) states in

relevant part:

In every case in which a person entitled to representation under a plan approved

under subsection (a) appears without counsel, the United States magistrate judge or

the court shall advise the person that he has the right to be represented by counsel and

that counsel will be appointed to represent him if he is financially unable to obtain

counsel. Unless the person waives representation by counsel, the United States

magistrate judge or the court, if satisfied after appropriate inquiry that the person is

financially unable to obtain counsel, shall appoint counsel to represent him.

Magistrate judges accordingly have explicit statutory authority to appoint counsel for criminal

defendants at the initial appearance and other proceedings. In particular, the authority of magistrate

December 2013 10 INVENTORY
judges to appoint counsel extends to state and federal habeas corpus proceedings under 28 U.S.C.

§ 2254 and 28 U.S.C. § 2255.

1st Circuit:

United States v. Coneo-Guerrero, 148 F. 3d 44 (1st Cir. 1998), cert. denied, 526 U.S. 1094

(1999)

A magistrate judge properly conducted a hearing under Fed. R. Crim. P. 44 to inquire into

joint representation of multiple defendants by one attorney and to advise each defendant of

his right to separate counsel.

United States v. Szpyt, 253 F.R.D. 5 (D. Me. 2008)

Pursuant to 18 U.S.C. § 3006A(f), a magistrate judge ordered a criminal defendant to

reimburse the cost of court-appointed counsel after retaining successor counsel at his own

expense. (Opinion by a magistrate judge.)

United States v. Dolliver, 2008 WL 1924998 (D. Me. 2008)

The defendant moved for appointment of counsel before seeking relief under 28 U.S.C. §

2255 (motion attacking sentence). The magistrate judge correctly ruled that the defendant

must first file a § 2255 petition so that the court can decide whether the appointment of

counsel is required in “the interests of justice” under 18 U.S.C. § 3006A(a)(2)(B).

Carmichael v. Warden, Maine State Prison, 346 F. Supp. 2d 207 (D. Me. 2004)

A magistrate judge’s denial of a state habeas corpus petitioner’s motion to appoint counsel

was not clearly erroneous or contrary to law, even though the magistrate judge denied the

motion without explanation, where the record clearly demonstrated that the petitioner was

familiar with the law, and that the legal issues presented by the petition were straightforward

and required no legal assistance.

5th Circuit:

United States v. Salado, 339 F. 3d 285 (5th Cir. 2003)

A magistrate judge’s warnings to the defendant concerning joint representation six

months before the defendant and a co-defendant appeared together before a district judge did

not comply with the mandates of United States v. Garcia, 517 F. 2d 272 (5 Cir. 1975) th, and

Fed. R. Crim. P. 44. Because the magistrate judge’s warnings were directed to the defendant

and a different co-defendant, and an explicit waiver was not obtained from the defendant, the

case required remand for further proceedings.

United States v. Burraston, 178 F. Supp. 2d 730 (W.D. Tex. 2002)

During the joint representation of two defendants, counsel informed themagistrate judge that

there would “probably [be] a Rule 44 problem at some point in the future.” Since this was

a matter of joint representation, the magistrate judge was obliged under Fed. R. Crim. P. 44

to inquire into possible conflicts of interest.

6th Circuit:

United States v. Osborne, 402 F. 3d 626 (6th Cir. 2005)

The hearing conducted by a magistrate judge concerning the defendant’s purported waiver

December 2013 11 INVENTORY
of the right to conflict free counsel did not comply with Fed. R. Crim. P. 44(c) where the

defendant was not informed of the types of conflict of interest that might arise from joint

representation. In particular, the defendant was not questioned as to whether she had been

fully informed by counsel of the potential concerns raised by the joint representation; the

magistrate judge failed to explain the risk that counsel’s representation might present; and

the hearing left ambiguity concerning whether the waiver was accepted only provisionally.

United States v. Cordell, 924 F. 2d 614 (6th Cir. 1991)

The court found no violation of the defendant’s Sixth Amendment right to counsel where a

magistrate judge granted an attorney's motion to withdraw as counsel in a felony case and

appointed the defendant new counsel who had 14 days to prepare for trial.

9th Circuit:

United States v. Hickey, 997 F. Supp. 1206 (N.D. Cal. 1998) 

A magistrate judge had authority under the Criminal Justice Act to seal financial affidavits

for appointment of counsel to prevent possible violation of the defendants' Fifth Amendment

rights against self-incrimination. A magistrate judge also had authority to order a hearing

under the CJA to determine whether the court’s appointment of counsel should be

terminated. (Opinion by a magistrate judge.)

E. Preliminary Hearings and Examinations [Fed. R. Crim. P. 5.1 and 18 U.S.C. § 3060]

The preliminary hearing (as identified in Fed. R. Crim. P. 5.1), or the preliminary examination (as

identified in 18 U.S.C. § 3060), is an evidentiary hearing held before a magistrate judge to determine

whether there is probable cause to hold a defendant who has been charged with a criminal offense

by complaint for further proceedings in the district court. Federal Rule of Criminal Procedure 5.1

states in relevant part:

(a) In General. If a defendant is charged with an offense other than a petty offense,

a magistrate judge must conduct a preliminary hearing unless:

(1) the defendant waives the hearing;

(2) the defendant is indicted; 

(3) the government files an information under Rule 7(b) charging the defendant with

a felony;

(4) the government files an information charging the defendant with a misdemeanor;

or

(5) the defendant is charged with a misdemeanor and consents to trial before a

magistrate judge.

Rule 5.1(e) further sets forth the magistrate judge’s role in conducting the preliminary hearing:

If themagistrate judge finds probable cause to believe an offense has been committed

and the defendant committed it, the magistrate judge must promptly require the

defendant to appear for further proceedings. 

December 2013 12 INVENTORY
Both Fed. R. Crim. P. 5.1 and 18 U.S.C. § 3060 set forth in detail the procedural requirements for

these proceedings. 

1st Circuit:

United States v. Martinez-Baez, 928 F. Supp. 2d 291 (D. Mass. 2013), 

A magistrate judge held that a defendant’s statement at a preliminary hearing under Fed. R.

Crim. P. 5.1 that he had been born in Puerto Rico did not establish probable cause that the

defendant made a false claim of United States citizenship in violation of 18 U.S.C. § 911. 

The magistrate judge held that the Government’s evidence did not establish probable cause

and ordered the complaint against the defendant dismissed. Although the defendant was

discharged in the instant case, the magistrate judge also ordered that the defendant might “be

turned over to the authorities who have placed a detainer against the defendant with the U.S.

Marshals.” [See Information Memorandum No. 326 for a more detailed summary of this

case.]

7th Circuit:

United States v. Rodriguez, 460 F. Supp. 2d 902 (S.D. Ind. 2006)

Under Fed. R. Crim. P. 5. 1, a magistrate judge makes a de novo determination of probable

cause based on the facts and circumstances at the time of the preliminary hearing and for the

purpose of determining only whether the accused may be held to answer at trial. The

preliminary hearing does not consider whether probable cause supported the issuance of an

arrest warrant or whether the officers had probable cause at the time of an arrest, inquiries

for which a less-stringent standard of probable cause accommodates the different contexts

of facts, circumstances, and balancing of interests that occur at the time those decisions are

made. (Opinion by a magistrate judge.)

9th Circuit:

United States v. Ramirez-Cortez, 213 F. 3d 1149 (9th Cir. 2000)

The time period included in two continuances of the preliminary hearing should not have

been excluded from the time limits of the Speedy Trial Act when the magistrate judge failed

to make specific findings required to justify the delay.

United States v. Martinez-Leon, 565 F. Supp. 2d 1131 (C.D. Cal. 2008)

A defendant indicted in the Eastern District of Pennsylvania, and arrested in the Central

District of California would not be permitted to challenge identification testimony by a law

enforcement officer through a motion to suppress at the defendant’s identity hearing under

Fed. R. Crim. P. 5 and Fed. R. Crim. P. 5.1. (Opinion by a magistrate judge.)

United Staes v. Kang, 489 F. Supp. 2d 1095 (N.D. Cal. 2007)

A magistrate judge ruled that a defendant could not file a motion to dismiss the complaint

before the expiration of the time period provided in Fed. R. Crim. P. 5.1 for a preliminary

hearing or an indictment. (Opinion by a magistrate judge.)

United Staes v. Begaye, 236 F.R.D. 448 (D. Ariz 2006)

The rules of discovery in Fed. R. Crim. P. 16 were not applicable to preliminary hearings and

did not contemplate the production of prosecution witness statements to the defendant at

December 2013 13 INVENTORY
such a proceeding. (Opinion by a magistrate judge.)

10th Circuit:

United States v. Valdez-Gutierrez, 249 F.R.D. 368 (D. N. M. 2008)

A magistrate judge should not have required reports prepared by a non-testifying author to

be produced to defense counsel at a preliminaryhearing where the testifying witness, was not

involved in the underlying investigation and who played no role in preparing the report, even

though the witness relied on the report in providing testimony.

F. Removal Proceedings [Fed. R. Crim. P. 40]

Federal Rule of Criminal Procedure 40 states in relevant part:

(a) In General. A person must be taken without unnecessary delay before a

magistrate judge in the district of arrest if the person has been arrested under a

warrant issued in another district for:

(i) failing to appear as required by the terms of that person’s release under 18 U.S.C.

§§ 3141-3156 or by a subpoena; or

(ii) violating conditions of release set in another district.

Rule 40 has undergone extensive revision in recent years. In 2002, portions of former Rule 40 were

relocated to Rule 5 (Initial Appearance), Rule 5.1 (Preliminary Hearing), and Rule 32.1 (Revoking

or Modifying Probation or Supervised Release). In 2006, Rule 40 was amended to authorize a

magistrate judge in the district of arrest to set conditions of release not only for persons who fail to

appear, but also for persons who violate any other condition of their release.

2d Circuit:

United States v. Antoine, 796 F. Supp. 2d 417 (E.D.N.Y. 2011)

A district judge affirmed a magistrate judge’s order of removal, finding that the magistrate

judge properly applied the standard of probable cause to determine whether removal was

warranted under Fed. R. Crim. P. 5 and that the government had met its burden for removal. 

[See Information Memorandum No. 321 for a more detailed summary of this case.]

G. Release or Detention Orders Under the Bail Reform Act [18 U.S.C. § 3141 et seq.]

In 1793, Congress first authorized "discreet persons learned in the law" to grant bail in federal

criminal cases. Since enactment of the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., Congress

has greatly expanded magistrate judge authority to order the release or detention of criminal

defendants. 

1. Authority of Magistrate Judge

1st Circuit:

United States v. Zhu, 215 F.R.D. 21 (D. Mass. 2003)

A magistrate judge ruled that when a person is arrested under 18 U.S.C. § 3148(b) for

violating conditions of release (other than a failure to appear) and the arrest takes place in

December 2013 14 INVENTORY
a district other than the district in which the arrest was ordered, the magistrate judge in the

district of arrest has no power to hold a detention hearing and no power to release the

defendant. Rather, the only function of the magistrate judge in the district of arrest is to hold

an identity hearing, and if the person arrested is found to be the person named in the warrant,

to order the defendant's removal in the custody of the U.S. Marshal to the district in which

the order of arrest was issued. (Opinion by a magistrate judge.)

2d Circuit:

United States v. Havens, 487 F. Supp. 2d 335 (W.D.N.Y. 2007)

Where a defendant was charged in the Eastern District of Texas with child pornography

offenses and arrested in the Western District of New York, a magistrate judge in the arresting

district, reconciling seemingly contradictory decisions of the Second Circuit, ruled that 18

U.S.C. § 3142(f) conferred authority upon the magistrate judge to conduct a detention

hearing prior to the defendant’s removal to the prosecuting district. (Opinion by a magistrate

judge.)

United States v. Carretero, 1999 WL 1034508 (N.D. N.Y. 1999)

Despite the language in 18 U.S.C. § 3143 that requires detention in certain post-plea drug

cases, the district court retains the authority under Section 3145(c)to release such defendants

as long as conditions exist that would preclude danger to the community or flight, and as

long as exceptional reasons justify the release. Furthermore, magistrate judges are “judicial

officers” who may exercise authority under Section 3145(c). (Opinion by a magistrate

judge.)

4th Circuit:

United States v. McGrann, 927 F. Supp. 2d 279 (E.D. Va. 2013)

A magistrate judge held that when a defendant pleads guilty before a magistrate judge under

Fed. R. Crim. P. 11, the defendant has been “found guilty,” as that term is defined in the Bail

Reform Act, 18 U.S.C. § 3143(a), and therefore must be immediately detained pending

sentencing. [See Information Memorandum No. 326 for a more detailed summary of this

case.]

United States v. Cannon, 711 F. Supp. 2d 602 (E.D. Va. 2010)

A defendant charged in one district, but arrested in another district and ordered detained by

a district judge in that district, did not have a right to a detention hearing before a magistrate

judge in the charging district. [See Information Memorandum No. 317 for a more detailed

summary of this case.]

6th Circuit:

United States v. Fermin, 2008 WL 2741812 (E.D. Mich. 2008)

Because the magistrate judge in the arresting district entered an order of removal to another

district, and not a detention order, the magistrate judge in the charging district had the

authority to conduct a detention hearing.

(Opinion by a magistrate judge).

December 2013 15 INVENTORY
8th Circuit:

United States v. Spilotro, 786 F. 2d 808 (8th Cir. 1986), cert. denied, 486 U.S. 1006 (1988) 

A magistrate judge of the court with original jurisdiction over the offense charged had the

authority to amend the conditions of release set previously in another district by another

magistrate judge. [Interpreting § 3146(e) of the Bail Reform Act of 1966.] 

9th Circuit:

United States v. Peterson, 557 F. Supp. 2d 1124 (E.D. Cal. 2008)

A magistrate judge was authorized to stay her release order upon the application of the

government’s attorneyunder 18U.S.C. § 3142(f)(2)(B), which provides that a defendant may

be detained pending completion of the detention hearing. Subsection 3145(a) requires a

prompt review of the motion to revoke the magistrate judge’s release order, thus providing

a reasonable safeguard against unduly extended detention during review.

United States v. Bibbs, 488 F. Supp. 2d 925 (N.D. Cal. 2007)

A magistrate judge ruled that the Sixth Amendment right to confront witnesses did not apply

in a detention hearing under the Bail Reform Act, and that the due process clause did not

require that the magistrate judge allow the defendant to subpoena the Government's

witnesses for cross-examination. (Opinion by a magistrate judge.)

United States v. Cabrera-Ortigoza, 196 F.R.D. 571 (S.D. Cal. 2000)

In a detention hearing, the magistrate judge determines the weight of the proffer or whether

other information, evidence or testimony, is warranted. The judicial officer presiding at the

detention hearing is vested with discretion whether to allow defense counsel to call adverse

witnesses. Without a proffer from the defendant that the government's proffered information

is incorrect, the magistrate judge is not required to allow the defendant to cross-examine the

investigators and police officers. (Opinion by a magistrate judge.)

10th Circuit:

United States v. Cisneros, 328 F. 3d 610 (10th Cir. 2003)

In accordance with 18 U.S.C. § 3145(a), a magistrate judge in the charging district had no

authority to rule on the government’s motion to revoke a release order issued by a magistrate

judge in the arresting district. The procedural error, however, was harmless in this case

because a district court judge in the district “having original jurisdiction over the offense”

reviewed the detention order de novo and considered all of the evidence offered to that point.

United States v. Thurston, 2004 WL 2370696 (D. Kan. 2004)

A magistrate judge in the district of the defendant’s arrest set conditions of release pertaining

to federal charges filed against the defendant in Texas. In accordance with 18 U.S.C. §

3148, the magistrate judge concluded that he had authority to hold a detention hearing

pertaining to charges from Texas that the defendant had violated the conditions of release set

by the magistrate judge. (Opinion by a magistrate judge.)

December 2013 16 INVENTORY
11th Circuit:

United States v. Jeffries, 679 F. Supp. 1114 (M.D. Ga. 1988)

A magistrate judge had the discretion to control a detention hearing to prevent a pretrial

matter from becoming a proceeding resembling a trial.

2. Detention of Material Witnesses

Section 3144 of Title 18 provides magistrate judges with authority to detain an individual if it is

established by affidavit "that the testimony of a person is material in a criminal proceeding...." , and

if it is shown that it may become impracticable to secure the presence of the person by subpoena....”

The government's utilization of this statutory provision to detain material witnesses in criminal

investigations has increased significantlysince the terrorist attacks on the United States in September

11, 2001.

1st Circuit:

United States v. Nai, 949 F. Supp. 42 (D. Mass. 1996)

A magistrate judge ordered material witnesses from China detained after the government's

affidavit established that there was a serious risk that the witnesses would flee and that no

conditions of release could adequately ensure their appearance to testify, but also ordered the

witnesses to be detained in a minimum security residential facility rather than in a jail.

(Opinion by a magistrate judge.) 

2d Circuit:

United States v. Awadallah, 349 F. 3d 42 (2d Cir. 2003), cert. denied, 543 U.S. 1056 (2005)

A magistrate judge did not err in ordering Awadallah’s detention after the government

moved to detain him as a material witness under 18 U.S.C. § 3144, even though no

underlying criminal case had yet been filed. The material witness statute may be used to

detain individuals before a criminal case is filed in federal court.

9th Circuit:

United States v. Lai Fa Chen, 214 F.R.D. 578 (N.D. Cal. 2003)

A magistrate judge ordered the depositions of detained material witnesses be taken under 18

U.S.C. § 3144 and Fed. R. Crim. P. 15 where exceptional circumstances existed justifying

such depositions. (Opinion by a magistrate judge.) 

10th Circuit:

United States v. Fuentes-Galindo, 929 F. 2d 1507 (10th Cir. 1991)

Depositions under 18 U.S.C. § 3144 required a party to file an affidavit establishing certain

facts. A magistrate judge had no authority to implement these procedures absent such

affidavits.

United States v. Lopez-Cervantes, 918 F. 2d 111 (10th Cir. 1990)

A magistrate judge had no authority under 18 U.S.C. § 3144 to detain witnesses for video

depositions absent the submission of affidavits by the parties.

December 2013 17 INVENTORY
H. Initial Appearances and Preliminary Hearings for Defendants Where Government is

Seeking Revocation or Modification of Supervised Release or Probation [Fed. R. Crim.

P. 32.1]

Magistrate judges are authorized to conduct initial appearances and preliminary hearings for

defendants held in custody for violating terms of probation or supervised release. Federal Rule of

Criminal Procedure 32.1 states in relevant part:

(a) Initial Appearance.

(1) Person In Custody. A person held in custody for violating probation or

supervised release must be taken without unnecessary delay before a magistrate

judge.

***

(b) Revocation.

(1) Preliminary Hearing.

(A) In General. If a person is in custody for violating a

condition of probation or supervised release, a magistrate judge must

promptly conduct a hearing to determine whether there is probable

cause to believe that a violation occurred. The person may waive the

hearing.

Rule 32.1(a)(5) also sets forth detailed procedures that applywhen a defendant is arrested in a district

that does not have jurisdiction to conduct the final hearing to revoke supervised release or probation. 

Rule 32.1(a)(6) also authorizes magistrate judges to release or detain defendants under 

18 U.S.C. § 3143(a) pending further proceedings. 

4th Circuit:

Julian v. United States, 2007 WL 1960589 (D. S. C. 2007)

A delay of less than one month between being taken into federal custody and appearing

before a magistrate judge does not violate Fed. R. Crim. P. 32.1.

5th Circuit:

United States v. Brigham, 569 F.3d 220 (5 Cir. 2009) th

A district judge had authority to stay, review, and reverse a magistrate judge’s order

dismissing a supervised release revocation proceeding under Fed. R. Crim. P. 32.1 after the

magistrate judge had determined that probable cause had not been shown that the defendant

had violated the terms of his supervised release. [See Information Memorandum No. 313

for a more detailed summary of this case.]

6th Circuit:

United States v. Curtis, 237 F. 3d 598 (6th Cir. 2001)

A magistrate judge’s probable cause determination in a revocation of supervised release

proceeding under Fed. R. Crim. P. 32.1 constitutes a preliminary, non-dispositive matter, and

December 2013 18 INVENTORY
the district court must apply a clearly erroneous standard of review.

7th Circuit:

United States v. Reyes-Gutierrez, 2008 WL 3538575 (E.D. Wis. 2008)

The defendant had a right to a preliminary hearing before a magistrate judge in the Southern

District of Texas, from which the arrest warrant issued for alleged violations of the

conditions of supervised release that occurred in Texas, but the hearing need not be held

within ten days. The court noted that the district court in Texas would have to decide if the

government acted with appropriate dispatch in this case.

8th Circuit:

United States v. Pardue, 363 F. 3d 695 (8th Cir. 2004)

The requirements of Fed R. Crim. P. 32.1(a)(1) did not apply when the defendant was also

being detained on state law charges of aggravated robbery and aggravated assault. Rule 32.1

serves to protect the probationer from undue federal incarceration and the probationer’s

ability to defend against allegations that conditions of supervised release or probation have

been violated. Because of the pending state law charges, no undue federal incarceration

occurred in this case. Furthermore, because the probationer appeared with counsel before

a district judge or a magistrate judge three separate times without requesting a Rule 32.1

hearing, the probationer was found to have waived his right to such a hearing.

9th Circuit:

United States v. Jeremiah, 493 F. 3d 1042 (9th Cir. 2007)

A defendant waived his right to a preliminary hearing before a magistrate judge under Fed.

R. Crim. P. 32.1 by failing to raise the issue with either the magistrate judge or the district

judge.

10th Circuit:

United States v. Horney, 47 Fed Appx. 869 (10th Cir. 2002)

An almost four-month delay between the defendant’s detention for violations of the terms

of supervised release and his appearance before a magistrate judge did not warrant

overturning the release revocation decision or the resulting sentence, where the defendant

failed to identify any prejudice resulting from the failure to hold a more prompt hearing.

I. Other Duties

Magistrate judges currently perform a variety of other duties analogous to commissioner duties for

the district courts. These duties are not described in the Federal Magistrates Act, and the statutes

authorizing such duties do not specify the involvement of magistrate judges. The authority of

magistrate judges to perform these duties has not been addressed in case law, but it is assumed by

the courts where magistrate judges now perform such duties to be derived from the general authority

of the Federal Magistrates Act and of the district court itself. This list should not be considered

all-encompassing.

The Judicial Services Office recognizes that the following duties are referred to magistrate judges

in various districts around the country, often under local rules. The duties are listed to suggest how

December 2013 19 INVENTORY
different courts have utilized magistrate judges over the last forty years. 

@ Orders of Entry (I.R.S. administrative proceedings.)

@ Nebbia Hearings (Hearings to determine the source of bail provided on behalf of a

criminal defendant.)

@ Warrants to Gain Access to Telephone and Toll Records (18 U.S.C. § 2703.)

@ Peace Bonds (50 U.S.C. § 23)

@ Orders for Line-ups, Blood Samples and Fingerprints

@ Orders Sealing or Unsealing Documents Filed with the Clerk of Court

@ Creation and Administration of Collateral Forfeiture Plan

December 2013 20 INVENTORY
§ 2. EXTRADITION PROCEEDINGS AND OTHER DUTIES UNDER § 636(a) 

A. Extradition Proceedings [18 U.S.C. § 3184]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Authority of Magistrate Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2. Scope of Magistrate Judge's Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

3. Magistrate Judge's Authority to Set Conditions of Release . . . . . . . . . . . . 8

4. Review of Magistrate Judge's Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. Prisoner Transfer Proceedings To or From Foreign Countries [28 U.S.C. 

§ 636(g) and 18 U.S.C. §§ 4107, 4108, and 4109].. . . . . . . . . . . . . . . . . . . . . . . 11

C. Oaths and Affirmations [Fed. R. Crim. P. 3 and 58; 5 U.S.C. § 2903]. . . . . . 11

D. Grand Jury Proceedings [Fed. R. Crim. P. 6]. . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 2. EXTRADITION PROCEEDINGS AND OTHER DUTIES UNDER § 636(a) 

A. Extradition Proceedings [18 U.S.C. § 3184]

Extradition proceedings are governed by 18 U.S.C. § 3181 et seq. Section 3184 provides that “any

magistrate judge authorized to do so by a court of the United States” may conduct extradition

proceedings under this statute. 

1. Authority of Magistrate Judge

Courts have consistently rejected arguments that extradition proceedings must be presided over by

an Article III judge. 

2d Circuit:

Lo Duca v. United States, 93 F.3d 1100 (2d Cir.), cert. denied, 519 U.S. 1007 (1996)

A magistrate judge acting as an extradition officer under the statute does not exercise the

judicial power of the United States, but acts in a “non-institutional capacity.” The extradition

statute provides a grant of authority to magistrate judges that is independent of the Federal

Magistrates Act. 

Austin v. Healey, 5 F.3d 598 (2d Cir. 1993), cert. denied, 510 U.S. 1165 (1994)

Authorizing a magistrate judge by local rule to conduct an extradition proceeding under 18

U.S.C. § 3184 did not violate Article III or the Federal Magistrates Act.

Germany v. United States, 2007 WL 2581894 (E.D.N.Y. 2007)

Section 3184 of Title 18 does not require a specific delegation of authority from a district

judge to a magistrate judge so that the magistrate judgemayconduct extradition proceedings. 

In theEastern District of New York, magistrate judges are specificallyempowered to conduct

hearings and to consider evidence in extradition proceedings, and therefore the magistrate

judge in the case at bar had jurisdiction to hear the extradition proceeding.

Gill v. Imundi, 747 F. Supp. 1028 (S.D.N.Y. 1990)

Judges performing the independent role of determining whether a certification of extradition

will issue need not be appointed under Article III of the Constitution, but may be federal or

state judges or magistrate judges at the federal or state level.

5th Circuit:

In re United States, 713 F.2d 105 (5th Cir. 1983)

The duty to certify in an extradition proceeding falls not upon the parties but upon the

extraditing magistrate judge. While the decision to surrender the defendant rests in the

discretion of the Secretary of State, action by the Secretary necessarilyawaited a certification

that the court failed to make.

December 2013 2 INVENTORY
7th Circuit:

DeSilva v. DiLeonardi, 125 F.3d 1110 (7th Cir. 1997), cert. denied sub nom., LoBue v.

DiLeonardi, 525 U.S. 810 (1998)

A certification of extradition issued by a magistrate judge was not an unconstitutional

advisory opinion; it was no different from a search warrant or an order approving

deportation. A federal court, including magistrate judges, had constitutional authority to

certify petitioners for extradition.

In re Rodriguez Ortiz, 444 F. Supp. 2d 876 (N.D. Ill. 2006)

The statute governing extradition proceedings, 18 U.S.C. § 3184, authorizes a broad class

of judicial officers to hear extradition cases. Federal magistrate judges are expressly

authorized to hear and decide extradition cases if "authorized to do so by a court of the

United States." 18 U.S.C. § 3184. In addition, the jurisdiction of federal magistrate judges

in extradition proceedings has been upheld as being consistent with Article III of the

Constitution.

9th Circuit:

Lopez-Smith v. Hood, 121 F.3d 1322 (9th Cir.1997)

The extradition statute that authorizes a magistrate judge’s involvement in the extradition

proceeding does not violate the separation-of-powers doctrine.

In re Extradition of Hernandez, 2008 WL 4567108 (S.D. Cal. 2008)

The magistrate judge who signs the provisional arrest warrant is not prohibited from

rendering the decision on extraditability. (Opinion by a magistrate judge.)

In re Extradition of Strunk, 293 F. Supp. 2d 1117 (E.D. Cal. 2003)

Extradition proceedings are not Article III jurisprudential proceedings, and the magistrate

judge had clear statutory authority to preside over an extradition proceeding. 

In re Extradition of Orozco“N”, 268 F. Supp. 2d 1115 (D. Ariz. 2003) 

A magistrate judge presiding in an extradition proceeding did not have authority to quash a

provisional arrest warrant. (Opinion by a magistrate judge.)

11th Circuit:

Noel v. United States, 12 F. Supp. 2d 1300 (M.D. Fla. 1998), aff’d, 180 F. 3d 274 (11th Cir.

1999) (Table disposition) 

A magistrate judge's participation in an extradition proceeding does not violate separationof-powers principles. The magistrate judge was authorized under § 636(a) of the Federal

Magistrates Act and the extradition statute, 18 U.S.C. § 3184, to preside over extradition

proceedings.

 

December 2013 3 INVENTORY
D.C. Circuit:

Ward v. Rutherford, 921 F.2d 286 (D.C. Cir. 1990), cert. dismissed sub nom., Ward v. 

Attridge, 501 U.S. 1225 (1991)

The authorization of a magistrate judge to perform extradition hearings does not violate

Article III. The court equates extradition authority with a determination of probable cause

in a preliminary examination. 

2. Scope of Magistrate Judge's Authority

Rule 1(a)(5) of the Federal Rules of Criminal Procedure states that the federal procedural rules are

not applicable to "the extradition and rendition of a fugitive." 

1st Circuit:

United States v. Kin-Hong, 110 F.3d 103 (1st Cir.), stay denied sub nom, Lui v. United

States, 520 U.S. 1206 (1997)

A magistrate judge's inquiry at an extradition hearing was limited to a narrow set of issues

concerning the existence of a treaty, the offense charged, and the quantum of evidence

offered. The purpose of the evidentiary portion of the extradition hearing was to determine

whether the United States, on behalf of the requesting government, had produced sufficient

evidence to hold the person for trial. The district court here improperly overturned the

magistrate judge's conclusion that the defendant should be certified for extradition. 

Matter of Extradition of Koskotas, 127 F.R.D. 13 (D. Mass. 1989), order modified, 740 F.

Supp. 904 (D. Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991)

A magistrate judge m1ay not inquire into motives behind a foreign nation's request for

extradition. Such matters are properly left to the State Department. The limited nature of

an extradition proceeding permits magistrate judges the discretionary authority to restrict the

scope of evidence admitted on the issue of probable cause. (Opinion by a magistrate judge.)

2d Circuit:

Spatola v. United States, 925 F.2d 615 (2d Cir. 1991)

The magistrate judge's role in an extradition hearing is to make a probable cause

determination that the defendant committed the acts presented. A magistrate judge is not

obligated to make an independent probable cause determination where a copy of a foreign

conviction is presented that demonstrates the defendant was present at a trial in a foreign

country.

Matter of Mackin, 668 F.2d 122 (2d Cir. 1981)

A magistrate judge was authorized under 18 U.S.C. § 3184 to decide the validity of a party's

political offense defenses to extradition. The magistrate judge's decision declining to certify

extradition on grounds that the offenses charged were political offenses was not an

appealable order.

December 2013 4 INVENTORY
In Matter of Extradition of Sandhu, 1996 WL 469290 (S.D.N.Y. 1996)

A magistrate judge refused to consider evidence of human rights abuses and due process

violations in India where such evidence was beyond the scope of the magistrate judge's

inquiry at the extradition hearing. (Opinion by a magistrate judge.)

3d Circuit:

Hoxha v. Levi, 465 F. 3d 554 (3d Cir. 2006)

In an extradition hearing, the court decides whether the defendant is subject to

surrender to the requesting government, a determination that requires a finding as

to whether probable cause supports the charges against the defendant. The 

magistrate judge did not abuse his discretion in excluding telephonic testimony of

witnesses who had recanted their testimony.

Matter of Extradition of Lehming, 951 F. Supp. 505 (D. Del. 1996)

Where the proffer of probable cause at an extradition hearing is supported by an affidavit,

a statement of sufficient underlying circumstances is essential if the magistrate judge is to

perform his detached function and not serve merely as a rubberstamp. The magistrate judge

concluded that therewas insufficient evidence presented bythe government at the extradition

hearing to establish probable cause. (Opinion by a magistrate judge.)

4th Circuit:

Mironescu v. Costner, 480 F. 3d 664 (4th Cir. 2007), cert. dismissed, 128 S.Ct. 976 (2008)

In the extradition process, a district court judge or magistrate judge conducts a hearing to

determine whether(1) there is probable cause to believe the fugitive has violated one or more

of the criminal laws of the countryrequesting extradition;(2) the alleged conduct would have

been a violation of American criminal law, if committed in the United States; and (3) the

fugitive is the one sought by the foreign nation for trial on the charge. If these requirements

are satisfied and the applicable treaty provides no other basis for denying extradition, the

judge must certify to the Secretary of State that the fugitive is extraditable.

Atuar v. United States, 156 Fed. Appx. 555 (4th Cir. 2005), cert. dismissed, 548 U.S. 928

(2006)

When reviewing a petition for extradition for the purpose of certification, a 

 magistrate judge is not barred by the due process clause from considering evidence

submitted by the requesting government.

Plaster v. United States, 720 F.2d 340 (4th Cir. 1983)

A magistrate judge properly refused to entertain a claim of due process violation during an

extradition certification proceeding since the claim was outside the scope of his statutory

authority under 18 U.S.C. § 3184.

December 2013 5 INVENTORY
In re Extradition of Exoo, 522 F. Supp. 2d 766 (S.D. W. Va. 2007)

The court is limited to considering five factors in extradition proceedings, the first three of

which are perfunctory: (1) whether the judicial officer is authorized to conduct extradition

proceedings; (2) whether the court has jurisdiction over the defendant; (3) whether the

applicable treaty is in full force and effect; (4) whether the crime for which extradition is

sought is included within the terms of the treaty; and (5) whether there is probable cause to

believe the crime for which the defendant’s extradition is sought was committed and that the

defendant participated in or committed it. (Opinion by a magistrate judge.)

In re Extradition of Mironescu, 296 F. Supp. 2d 632 (M.D.N.C. 2003)

The limited scope of extradition proceedings does not provide magistrate judges with

jurisdiction to consider the human rights conditions of the country requesting extradition. 

The United Nations Convention Against Torture does not obligate magistrate judges, during

an initial extradition hearing, to consider such conditions. This issue must be left for

consideration by the Secretary of State and, after the Secretary’s decision, any federal habeas

corpus review the defendant can gain.

(Opinion by a magistrate judge.)

5th Circuit:

Matter of Extradition of Russell, 805 F. 2d 1215 (5th Cir. 1986)

A magistrate judge had authority under 18 U.S.C. § 3184 to issue a provisional arrest warrant

and order provisional detention pending a formal extradition request. Bail should be denied

in an extradition proceeding absent special circumstances.

9th Circuit:

Vo v. Benov, 447 F. 3d 1235 (9th Cir.), cert. denied, 549 U.S. 935 (2006)

The authority of a magistrate judge serving as an extradition judicial officer is limited to

determining an individual’s eligibility for extradition, which the magistrate judge does by

ascertaining whether a crime is an extraditable offense under the relevant treaty and whether

probable cause exists to sustain the charge. Part of determining whether an offense is

extraditable is examining whether it falls within the “political offense” exception. If it does,

the individual is not eligible for extradition.

Wang v. Masaitis, 416 F. 3d 992 (9th Cir. 2005)

A magistrate judge had authority to issue a report and recommendation on a fugitive's

petition for habeas corpus appealing the magistrate judge's order of extradition issued

pursuant to an extradition treaty between Hong Kong and United States, even though the

petitioner did not consent to the referral to a magistrate judge.

 

Lopez-Smith v. Hood, 121 F.3d 1322 (9th Cir.1997)

A magistrate judge properly excluded evidence of alleged corruption in Mexico because it

was not relevant to the issue of whether there was probable cause to believe that a crime

occurred in a foreign country and that the defendant committed the crime. 

December 2013 6 INVENTORY
In re Extradition of Velasco Hernandez, 2008 WL 4567108 (S.D. Cal. 2008)

An extradition magistrate judge does not weigh conflicting evidence and make factual

determinations, but determines only whether there is competent evidence to support the

belief that the accused has committed the charged offense. (Opinion by a magistrate judge.)

In re Extradition of Ang, 486 F. Supp. 2d 1193 (D. Nev. 2006)

In a proceeding seeking to extradite an individual to the Philippines for alleged violent

crimes, the magistrate judge refused to apply the political offense exception to extradition

where the individual failed to establish that his alleged crimes occurred within the context

of a sustained and widespread degree of violence that would constitute a political uprising

against the Philippine government.

Prasoprat v. Benov, 294 F. Supp. 2d 1165 (C.D. Cal. 2003), affirmed 421 F. 3d

1009 (9 Cir. 2005 th), cert. denied, 546 U.S. 1171 (2006)

An extradition magistrate judge did not violate the defendant’s due process rights by denying

his discovery motion seeking disclosure of information relating to the use of the death

penalty as punishment for drug crimes in Thailand. 

In re Extradition of Strunk, 293 F. Supp. 2d 1117 (E.D. Cal. 2003)

A magistrate judge in an extradition proceeding applies a standard similar to that used in a

preliminaryhearing, determining whetherthe evidence justifies holding the accused for trial,

not whether the evidence may justify a conviction. The analysis is parallel to that used in

determining whether the evidence demonstrates probable cause to charge the crime. 

(Opinion by a magistrate judge.)

In re Extradition of Orozco“N”, 268 F. Supp. 2d 1115 (D. Ariz. 2003)

A magistrate judge presiding in an extradition proceeding did not have authority to quash a

provisional arrest warrant. (Opinion by a magistrate judge.)

Matter of Extradition of Powell, 4 F. Supp.2d 945 (S.D. Cal. 1998)

A magistrate judge's function at an extradition hearing is to determine whether there is "any"

evidence establishing reasonable or probable cause. The magistrate judge had no discretion

as to extradition; if the magistrate judge finds sufficient evidence to sustain the charge,

extradition "shall" be certified. The magistrate judge therefore lacked authority to hold a

"Franks" hearing challenging the truthfulness of an affidavit in the extradition proceeding. 

(Opinion by a magistrate judge.)

11th Circuit:

Basso v. United States Marshal, 278 Fed. Appx. 886 (11th Cir. 2008)

The rule of non-inquiry prevents an extradition magistrate from assessing the 

 receiving country’s judicial system.

December 2013 7 INVENTORY
3. Magistrate Judge's Authority to Set Conditions of Release

2d Circuit:

In re Extradition of Kapoor, 2012 WL 2374195 (E.D.N.Y. June 22, 2012)

After the magistrate judge conducted an extradition hearing, ruled that the government had

established probable cause for the charges against Kapoor, and granted the government’s

request for a certificate of extraditability, the government moved to revoke Kapoor’s bond

and remand her to federal custody. The magistrate judge ruled that even though Kapoor had

been certified as extraditable, her detention was not mandatory under 18 U.S.C. § 3184,

stating that Kapoor “demonstrated a confluence of factors, including a lack of diplomatic

necessity and anticipated lengthyproceedings and appeals, that collectivelyconstitute special

circumstances, undercut the presumption against bail, and weigh[ed] in favor of her release

[on bond].” Further noting that Kapoor had complied with all conditions of her release over

the previous year, the magistrate judge concluded that Kapoor did not pose a flight risk and

therefore denied the government’s detention motion. [See Information Memorandum No.

325 for a more detailed summary of this case.]

In re Extradition of Sacirbegovic , 280 F. Supp. 2d 81 (S.D.N.Y. 2003), on

reconsideration, 2004 WL 1490219 (S.D.N.Y. 2004)

The principle that bail is generally not available in extradition cases, absent special

circumstances, was applicable to a detainee challenging his extradition to the Federation of

Bosnia and Herzegovina on embezzlement charges. The detainee did not make an adequate

showing of special circumstances to justifyhis release from detention pending his extradition

hearing. (Opinion by a magistrate judge.)

4th Circuit:

United States v. Zarate, 492 F. Supp. 2d 514 (D. Md. 2007)

Since the information available at the time of the detention hearing indicated that the

defendant had been officially exonerated of the crime underlying the extradition warrant, and

since confinement for a crime of which the defendant had been acquitted would work a

substantial injustice, special circumstances existed to override the presumption against bail

in extradition proceedings. (Opinion by a magistrate judge.)

In re Extradition of Mironescu, 296 F. Supp. 2d 632 (M.D. N.C. 2003)

The Bail Reform Act, and the criteria governing the allowance and the amount of bail in

United States criminal cases, are not applicable in an extradition proceeding, which is not a

criminal case. The case law is settled that bail should not be granted in international

extradition proceedings except in special circumstances.

5th Circuit:

Matter of Extradition of Russell, 805 F. 2d 1215 (5th Cir. 1986)

A magistrate judge should deny bail in an extradition proceeding absent special

circumstances.

December 2013 8 INVENTORY
7th Circuit:

In re Extradition of Molnar, 182 F. Supp. 2d 684 (N.D. Ill. 2002)

A defendant sought for extradition to Hungary for an alleged crime of violence, but arrested

only pursuant to a provisional complaint, was entitled to release on bail upon showing of

special circumstances, despite the serious nature of the charge. (Opinion by a magistrate

judge.)

9th Circuit:

Matter of Requested Extradition of Kirby, 106 F. 3d 855 (9th Cir. 1997)

A magistrate judge had authority to set conditions of release for a defendant whose

extradition was sought by Great Britain for alleged terrorist activities in Northern Ireland

where "special circumstances" were established to justify the conditions of release. 

In re Extradition of Santos, 473 F. Supp. 2d 1030 (C.D. Cal. 2006)

Where Mexico sought the arrest and extradition of Santos on kidnaping and murder charges

pursuant to provisional arrest warrants that were later ruled to be lacking in probable cause

by Mexican courts, a magistrate judge ordered the release of the arrestee on bail, concluding

that Santos had demonstrated two special circumstances weighing in favor of his release on

bail: undue delay in resolution of the proceedings and a high degree of uncertainty regarding

the merits of the extradition request. The magistrate judge also found that Santos had

demonstrated that he was likely to appear for future proceedings, and that any risk of flight

could be mitigated satisfactorilybythe defendant’s release. (Opinion by a magistrate judge.)

4. Review of Magistrate Judge's Decision

2d Circuit:

Spatola v. United States, 925 F.2d 615 (2d Cir. 1991)

A magistrate judge's order certifying extradition could not be reviewed on direct appeal

because it was not a final decision of a district court under 28 U.S.C. § 1291.

Germany v. United States, 2007 WL 2581894 (E.D.N.Y. 2007)

An individual subject to extradition may have the extradition order reviewed by

seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. A habeas court’s 

review of an order of extradition is highly circumscribed.

Sandhu v. Burke, 2000 WL 191707 (S.D.N.Y. 2000).

The scope of review of the evidentiary findings of the extradition magistrate judge is

quite deferential.

Matter of Extradition of Atta, 706 F. Supp. 1032 (E.D.N.Y. 1989)

Where a magistrate judge denied the first complaint for extradition, the government could

file a second complaint in the district court, and the district judge could reverse the

magistrate judge's denial of extradition after a de novo hearing.

December 2013 9 INVENTORY
3d Circuit:

Hoxha v. Levi, 465 F. 3d 554 (3d Cir. 2006)

An individual challenging an extradition order may not appeal directly because the 

order does not constitute a final decision under 28 U.S.C. § 1291, but may file a petition for 

habeas corpus. The reviewing court on habeas may consider only whether the magistrate

judge had jurisdiction, whether the offense charged is within the treaty, and whether there

was any evidence warranting the finding that there was a reasonable ground to believe the

accused was guilty of the offense. A magistrate judge’s decision to admit or exclude

evidence is reviewed for an abuse of discretion. The magistrate judge’s finding of probable

cause will be upheld if there is any competent evidence in the record to support it. A legal

conclusion that an extradition treaty is currently in force is reviewed de novo.

4th Circuit:

Mironescu v. Costner, 480 F. 3d 664 (4th Cir. 2007), cert. dismissed, 128 S.Ct. 976 (2008)

Although a judge’s certification of extraditability is not appealable, a fugitive may obtain

limited collateral review of the certification in the form of a petition for a writ of habeas

corpus. In considering the petition, the district court generally determines only whether the

judge had jurisdiction, whether the charged offense is within the scope of the applicable

treaty, and whether there is any evidence supporting the probable cause finding. 

6th Circuit:

In re Extradition of Drayer, 190 F. 3d 410 (6th Cir. 1999), cert. denied, 528 U.S. 1176 (2000)

The scope of habeas review of an extradition action is limited. Habeas corpus is available

only to inquire whether the magistrate judge had jurisdiction, whether the offense charged

is within the extradition treaty and, by a somewhat liberal extension, whether there was any

evidence warranting a finding that there was reasonable ground to believe the accused guilty.

9th Circuit:

Vo v. Benov, 447 F. 3d 1235 (9th Cir.), cert. denied, 549 U.S. 935 (2006)

The decision to certify an individual as extraditable cannot be challenged on direct appeal. 

Rather, a petition for a writ of habeas corpus is the only available avenue to challenge an

extradition order. The district court’s habeas review of an extradition order is limited to

whether: (1) the extradition magistrate judge had jurisdiction over the individual; (2) the

treaty was in force and the accused’s alleged offense fell within the treaty’s terms, and (3)

there is any competent evidence supporting the probable cause determination of the

magistrate judge. However, the “political offense” question is reviewable on habeas corpus

as part of the question of whether the offense charged is within the treaty.

11th Circuit:

In re Extradition of Ghandtchi, 697 F. 2d 1037 (11th Cir. 1983)

A district judge had no inherent authority and no authority under the Extradition Act, the

Federal Magistrates Act, or the court's local rules to review a magistrate judge's bail order

in an extradition proceeding.

December 2013 10 INVENTORY
Ylipelkonen v. Thornburgh, 756 F. Supp. 570 (S.D. Fla. 1991)

In a habeas corpus proceeding to review a magistrate judge's extradition determination, the

district judge will review de novo the magistrate judge's decision whether an offense falls

within an extradition treaty.

B. Prisoner Transfer Proceedings To or From Foreign Countries [28 U.S.C. § 636(g) and

18 U.S.C. §§ 4107, 4108, and 4109]

Section 636(g) of Title 28 authorizes magistrate judges to perform “the verification function” under

18 U.S.C. §§ 4107, 4108 and 4109 for “offenders” wishing to transfer to or from incarceration in the

United States. Before a prisoner can transfer to or from the United States, a magistrate judge must

personally inform the offender of the conditions of the transfer and determine that the offender

understands and agrees to them. The magistrate judge must then verify that the offender consents

voluntarily to the transfer.

11th Circuit:

Bishop v. Reno, 210 F. 3d 1295 (11th Cir.), cert. denied, 531 U.S. 897 (2000)

After a magistrate judge conducted an international prisoner transfer proceeding to transfer

the petitioner from the Bahamas to the United States to complete his prison sentence on

Bahamian drug charges, the district court did not have jurisdiction to consider petitioner's

petition for habeas corpus challenging his Bahamian sentence.

C. Oaths and Affirmations [Fed. R. Crim. P. 3 and 58; 5 U.S.C. § 2903]

Rule 3 of the Federal Rules of Criminal Procedure requires that the complaint be made upon an oath

before a magistrate judge. Rule 58(d)(3) allows a statement under penalty of perjury to be

substituted for an oath before the magistrate judge without the affiant being required to appear before

the court in misdemeanor cases. 

4th Circuit:

Emswiler v. McCoy, 622 F. Supp. 786 (S.D.W. Va. 1985)

A magistrate judge was entitled to judicial immunity for issuing an arrest warrant and

certification that a complaint for summons was filed under oath.

D. Grand Jury Proceedings [Fed. R. Crim. P. 6]

Magistrate judges are authorized specifically to accept the return of an indictment from a grand jury

and to seal the indictment under Fed. R. Crim. P. 6. Other duties involving grand jury proceedings

may also be referred to a magistrate judge under 28 U.S.C. § 636(b). See Section 4, infra, for

additional opinions on this issue.

December 2013 11 INVENTORY
1st Circuit:

United States v. Laliberte, 131 F.R.D. 20 (D. Mass. 1990)

A magistrate judge was authorized to seal indictments. (Opinion by a magistrate judge.)

2d Circuit:

United States v. Gigante, 436 F. Supp. 2d 647 (S.D. N.Y. 2006)

While the magistrate judge’s decision to seal or not to seal an indictment will be accorded

great deference, the decision must be the product of the magistrate judge’s exercise of

discretion, based not just on assumptions but on an actual explanation from the government

of the need for sealing.

6th Circuit: 

United States v. Wright, 343 F. 3d 849 (6th Cir. 2003), cert. denied, 541 U.S. 990 (2004)

A magistrate judge’s decision to seal an indictment is accorded great deference.

8th Circuit:

United States v. Lakin, 875 F.2d 168 (8th Cir. 1989)

The sealing of an indictment is a ministerial act. Great deference is accorded to a magistrate

judge's exercise of discretion.

United States v. Morse, 2007 WL 4233075 (D. Minn. 2007)

Where a defendant received only an unsigned copy of the sealed indictment, the defendant

moved to dismiss the case, arguing that the magistrate judge erred by failing to order that

the defendant be provided with a copy of the signed indictment. While it may have been

preferable for the defendant to have been provided with a copy of the actual charging

document rather than an unsigned copy, the magistrate judge in the case at bar concluded that

the government had shown good cause why the signed indictment should not be provided to

the defendant and the magistrate judge’s decision was not clearly erroneous.

9th Circuit:

In re Search of 6783 East Soaring Eagle Way Scottsdale, AZ, 109 F. Supp. 2d 1162 (D. Ariz.

2000)

Noting that magistrate judges “have historically been actively involved in matters related to

grand juries,” a magistrate judge held that he had the authority under the Federal Magistrates

Act to order the disclosure of federal grand jury testimony. (Opinion by a magistrate judge.)

10th Circuit:

United States v. Thompson, 287 F. 3d 1244 (10th Cir. 2002)

The requirement in Fed. R. Crim. P. 6 that the indictment be returned to a magistrate judge

“in open court” mandates only that the grand jurors or the foreperson physically present the

indictment in court while the magistrate judge is presiding.

December 2013 12 INVENTORY
§ 3. DISPOSITION OF PETTY OFFENSE AND CLASS A MISDEMEANOR CASES

UNDER 28 U.S.C. § 636(a)(3) and 18 U.S.C. § 3401

A. Authority of Magistrate Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Scope of Magistrate Judge Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1. Sentencing Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. Probation and Supervised Release.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3. Expungement of Conviction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

C. Sufficiency of Consent Under 18 U.S.C. § 3401(b) in 

Class A Misdemeanor Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

D. Right to Jury Trial in Class A Misdemeanor Cases. . . . . . . . . . . . . . . . . . . . . 13

E. Petty Offense Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

F. Violation Notices and Collateral Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

G. Assimilative Crimes Act [18 U.S.C. § 13].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

H. Appeal of Magistrate Judge's Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
§ 3. DISPOSITION OF PETTY OFFENSE AND CLASS A MISDEMEANOR CASES

UNDER 28 U.S.C. § 636(a)(3) and 18 U.S.C. § 3401

Section 636(a)(3) of Title 28, United States Code, grants magistrate judges the power to conduct

trials in misdemeanor cases under 18 U.S.C. § 3401. Before 1996, magistrate judges were

authorized to try all misdemeanor cases where the defendant filed a written consent to trial by a

magistrate judge and specifically waived trial by a district judge, and where the magistrate judges

were specially designated by the district courts in which they served to exercise this jurisdiction. 

Under amendments to § 3401 and 28 U.S.C. § 636(a) enacted as part of the Federal Courts

Improvement Acts of 1996 and 2000, the authority of magistrate judges to try and dispose of

misdemeanor cases was expanded. Magistrate judges may now try and dispose of all infractions,

Class C misdemeanor cases, and Class B misdemeanor cases without the defendant's consent. 18

U.S. C. § 3401(b). 

In addition, although magistrate judges are authorized to try and dispose of all Class A misdemeanor

cases only when the defendant “expressly consents to be tried before the magistrate judge” and

“specificallywaives trial, judgment, and sentencing by a district judge,” the defendant’s consent and

waiver may be made either “in writing or orally on the record.” 18 U.S.C. § 3401(b). Written

consent and waiver by the defendant is no longer mandatory. 

Magistrate judges mayalso impose sentences in misdemeanor cases under 28 U.S.C. § 636(a)(4) and

18 U.S.C. § 3401(a). The maximum term of imprisonment that may be imposed for a federal

misdemeanor is one year (18 U.S.C. § 3581(b)(6)). 

A. Authority of Magistrate Judge

1st Circuit:

United States v. Zenon-Encarnacion, 387 F. 3d 60 (1st Cir. 2004)

A magistrate judge had authority under 28 U.S.C. § 636(a)(4) and 18 U.S.C. § 3401(a) to try

and sentence a defendant charged with a petty offense without the defendant’s consent.

United States v. Rivera-Negron, 201 F.R.D. 285 (D.P.R. 2001)

The 2000 amendment to 18 U.S.C. § 3401, which eliminated the defendant's right to

adjudication by an Article III judge and the requirement that a defendant must consent to

magistrate judge authority in all petty offense cases, did not violate the United States

Constitution. (Opinion by a magistrate judge.)

2d Circuit:

United States v. Posr, 463 F. Supp. 2d 434 (S.D.N.Y. 2006)

In a Class A misdemeanor prosecution of a defendant in the Southern District of New York

for assaulting a federal officer, where the fact that the defendant had not consented to

disposition of the case by a magistrate judge was not discovered until after a jury trial was

concluded and the defendant had appealed his conviction to a district judge, the magistrate

December 2013 2 INVENTORY
judge who presided over the jury trial had authority to vacate the original judgment and to

order the case re-assigned to a district judge.

4th Circuit:

United States v. Juvenile Male, 388 F. 3d 122 (4 Cir. 2004) th

A magistrate judge has authority under 18 U.S.C. §3401(g) to dispose of a petty offense case

involving a juvenile defendant without receiving certification from the Attorney General

under 18 U.S.C. § 5032. 

United States v. Bryson, 981 F. 2d 720 (4th Cir. 1992)

A magistrate judge's authority to accept a defendant's guilty plea and impose sentence in a

misdemeanor case with the defendant's consent under 18 U.S.C. 3401 did not authorize the

magistrate judge to subsequently entertain the defendant's motion under 28 U.S.C. § 2255

to vacate, set aside, or correct the sentence, and enter an order dismissing the motion without

obtaining further consent of the defendant under 28 U.S.C. § 636(c). 

United States v. Ferguson, 778 F. 2d 1017 (4th Cir. 1985), cert. denied, 476 U.S. 1123 

(1986)

Article III of the Constitution is not violated by the consensual referral of misdemeanor cases

for trial by magistrate judge. The cases remain to some extent under the district judge's

control.

5th Circuit:

Santos-Sanchez v. United States, 548 F.3d 327 (5th Cir. 2008)

A magistrate judgewho sentenced an alien defendant for a misdemeanor immigration offense

did not have authority to determine the defendant's petition for a writ of coram nobis

challenging his conviction. 

United States v. Hazelwood, 526 F.3d 862 (5 Cir. 2008) th

A magistrate judge had authority to preside over an assault case as a Class A misdemeanor,

even though the bill of information charging the defendant with the offense of assault under

18 U.S.C. § 111 on its face could have been construed as either a Class A misdemeanor or

a felony offense. The court concluded under the circumstances of this case that the defendant

was in fact charged with simple assault.

United States v. Johnson , 2009 WL1033773 (E.D. La. April 15, 2009)

Even though the defendant was convicted of two Class A misdemeanor charges of knowingly

distributing and selling a restricted pesticide in violation of the Federal Insecticide,

Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq. before a magistrate judge with the

consent of the defendant under 18 U.S.C. § 3401, the magistrate judge held that he did not

have authority to rule on the government’s application for a writ of garnishment upon the

entity administering the defendant’s pension after the entry of a judgment of restitution

against Johnson under the Mandatory Victims Restitution Act, 18 U.S.C. § 3613, and

December 2013 3 INVENTORY
therefore issued a report recommending that the writ be issued. The district judge thereafter

approved and adopted the magistrate judge’s report and recommendation and issued the writ

of garnishment. [See Information Memorandum No. 315 for a more detailed summary of

this case.]

United States v. Sanchez, 258 F. Supp. 2d 650 (S.D. Tex. 2003)

Magistrate judges are authorized to conduct trials and enter sentences in petty offense

immigration cases under their own authority and jurisdiction, without the consent of the

parties. Any conviction entered is not a report and recommendation to the district judge, but

is a binding adjudication of guilt, and therefore a defendant may not file objections to such

a misdemeanor conviction as if it were a non-binding recommendation made under 28U.S.C.

§ 636(b). 

6th Circuit:

United States v. Lee, 2010 WL 1425057 (E.D. Tenn. April 8, 2010)

A district judge ruled that the defendant’s consent was not necessary under 18 U.S.C. §

3401(a) for the magistrate judge to have jurisdiction to try the case where Lee was charged

with a petty offense by violation notice, and further that Lee did not have a right to a de novo

trial before a district judge. [See Information Memorandum No. 316 for a more detailed

summary of this case.]

United States v. Barnes, 732 F. Supp. 831 (E.D. Tenn. 1989)

The Code of Federal Regulations is given the force of law under 16 U.S.C. § 3. Magistrate

judges are therefore authorized to sentence defendants who violate such regulations, and can

order and revoke probation under 18 U.S.C. § 3561 et seq.

7th Circuit:

United States v. Gochis, 256 F. 3d 739 (7 Cir. 2001) th

A magistrate judge's failure to inform a misdemeanor defendant of his right to trial by a

district judge was harmless error that did not invalidate the magistrate judge's authority to

dispose of the case under 18 U.S.C. § 3401 where the defendant signed a written consent

form stating that he had waived his right to adjudication by an Article III judge.

9th Circuit:

United States v. Jenkins, 734 F. 2d 1322 (9th Cir. 1983), cert. denied, 469 U.S. 1217 (1985)

Although magistrate judges are not Article III judges, 28 U.S.C. § 636(a)(3), granting

magistrate judges consensual trial authority in misdemeanor cases, does not violate the

Constitution. 

United States v. Byers, 730 F. 2d 568 (9th Cir.), cert. denied, 469 U.S. 934 (1984)

The consensual referral of misdemeanor cases to magistrate judges does not violate the

Constitution. The court emphasized the curative effects of the parties' consent and control

by Article III judges.

December 2013 4 INVENTORY
United States v. McCrickard, 957 F. Supp. 1149 (E.D. Cal. 1996)

The 1996 amendment to 18 U.S.C. § 3401, which eliminated the defendant’s right to

adjudication by an Article III judge and the requirement that a defendant must consent to

magistrate judge authority in certain petty offense cases, does not violate Article III of the

United States Constitution. (Opinion by a magistrate judge.) 

10th Circuit:

United States v. Dobey, 751 F. 2d 1140 (10th Cir.), cert. denied, 474 U.S. 818 (1985)

Article III of the Constitution was not violated by the consensual referral of misdemeanor

cases to magistrate judges. Consent under 18 U.S.C. § 3401 constitutes a valid waiver of the

right to trial before an Article III judge.

B. Scope of Magistrate Judge Authority

2d Circuit:

Tocci v. United States, 178 F. Supp. 2d 176 (N.D.N.Y. 2001)

A magistrate judge’s failure when taking a defendant’s guilty plea to a Class A misdemeanor

immigration offense to elicit a factual basis for the plea was not a mere technical, minor, or

harmless error, but was one that denied the defendant’s due process rights under the Fifth

Amendment. In addition, the failure to advise the defendant of his right to appeal his

conviction constituted a sufficiently significant breach of due process requirements to entitle

the defendant to coram nobis relief. (Opinion by a magistrate judge.) 

3d Circuit: 

United States v. De Graaff, 242 Fed. Appx. 828 (3 Cir. 2007) rd

Where a defendant was prosecuted in the District of New Jersey on petty offense simple

assault and disorderly conduct charges, the magistrate judge’s failure at the defendant’s

initial appearance to comply with the requirements of Fed. R. Crim. P. 58 by not informing

the defendant of the charges against her, of the minimum and maximum penalties she was

facing, her right to retain counsel, her right not to make a statement, and that any statement

made might be used against her, constituted harmless error and did not mandate overturning

the defendant’s conviction.

4th Circuit:

United States v. Washington, 498 F. 3d 225 (4 Cir. 2007) th

In the petty offense prosecution of a defendant in the District of Maryland for a DUI offense

occurring on the Baltimore-Washington Parkway, the presiding magistrate judge did not

abuse his discretion in entering into evidence at trial testimony of an expert witness

concerning a blood sample taken from the defendant the night of his arrest and tested at the

expert’s lab, where the expert concluded that the defendant’s blood contained phencyclidine

(“PCP”) and alcohol, and that the defendant's conduct during the night of his arrest was

consistent with the presence of drugs and alcohol in his blood. 

December 2013 5 INVENTORY
United States v. Pollard, 389 F. 3d 101 (4 Cir. 2004), cert. denied, 544 U.S. 912 (2005) th

A defendant’s right to counsel under the Sixth Amendment was not violated when a

magistrate judge accepted the defendant's guilty plea to a misdemeanor DWI offense without

the benefit of counsel and sentenced the defendant to a term of probation.

United States v. Steinert, 470 F. Supp. 2d 627 (E.D. Va. 2007)

A magistrate judge committed plain error when she failed to provide the defendant in a petty

offense case an opportunity to allocute prior to the revocation of the defendant’s supervised

release and his sentencing for the supervised release violations.

United States v. James, 164 F. Supp. 2d. 718 (D. Md. 2001)

A delay of 20 months between trial of misdemeanor case before a magistrate judge and the

entry of a judgment did not violate defendant's right to a speedy trial or to due process.

5th Circuit:

Santos-Sanchez v. United States, 548 F.3d 327 (5th Cir. 2008)

A magistrate judge who conducted a guilty plea proceeding under Fed. R. Crim. P. 11 for an

alien defendant charged with a misdemeanor immigration offense was not required to inform

the defendant of the immigration consequences of the guilty plea for the plea to be voluntary.

United States v. Johnson , 2009 WL1033773 (E.D. La. April 15, 2009)

Even though the defendant was convicted of two Class A misdemeanor charges of knowingly

distributing and selling a restricted pesticide in violation of the Federal Insecticide,

Fungicide, and Rodenticide Act, 7 U.S.C. § 136 before a magistrate judge with the consent

of the defendant under 18 U.S.C. § 3401, the magistrate judge held that he did not have

authority to rule on the government’s application for a writ of garnishment upon the entity

administering the defendant’s pension after the entry of a judgment of restitution against

Johnson under the Mandatory Victims Restitution Act, 18 U.S.C. § 3613, and therefore

issued a report recommending that the writ be issued. [See Information Memorandum No.

315 for a more detailed summary of this case.]

7th Circuit:

United States v. Van Fassan, 899 F. 2d 636 (7th Cir. 1990)

A defendant was not entitled to a new trial when the magistrate judge orally misstated the

burden of proof during a bench trial in a misdemeanor case.

8th Circuit:

United States v. Scott, 945 F. Supp. 205 (D.S.D. 1996)

A magistrate judge had authority to suppress evidence obtained by police in a warrantless

non-consensual probation search and arrest of the defendant on misdemeanor drug

possession charge. (Opinion by a magistrate judge.)

December 2013 6 INVENTORY
9th Circuit:

United States v. Roblero-Solis, 588 F. 3d 692 (9 Cir. 2009) th, 

District court's practice of having a magistrate judge conduct simultaneous guilty plea and

sentencing proceedings for a large number of defendants charged with petty offense

immigration offenses violates Fed. R. Crim. P. 11. [See Information Memorandum No. 315

for a more detailed summary of this case.]

United States v. Walker, 117 F. 3d 417 (9th Cir. 1997)

A magistrate judge did not abuse her discretion by admitting hearsay evidence during a

proceeding to revoke a defendant's term of supervised release in a misdemeanor case.

United States v. Sweeney, 914 F. 2d 1260 (9th Cir. 1990)

A magistrate judge exceeded his authority under the Federal Magistrates Act when he

ordered the United States attorney and the clerk of the district court not to report defendants'

misdemeanor convictions for DUI offenses on federal enclaves to the state motor vehicle

department.

United States v. Plascencia-Orozco, 768 F. 2d 1074 (9th Cir. 1985)

An inquiry regarding the defendant's identity at an arraignment was an element of the

magistrate judge's administrative duties. The defendant could be charged under 18 U.S.C.

§ 1001, which criminalizes fraudulent statements made during administrative functions

before a federal judge, when he gave a false name in executing a consent to trial of a

misdemeanor before the magistrate judge.

United States v. Baca, 610 F. Supp. 2d 1203 (E.D. Cal. 2009) 

A magistrate judge abused his discretion in denying a defendant’s recusal motion, where the

defendant moved to disqualify the magistrate judge for an appearance of a lack of

impartiality after reading a newspaper article about the magistrate judge that included a

photograph of the judge in his chambers with a hangman’s noose. [See Information

Memorandum No. 313 for a more detailed summary of this case.]

10th Circuit:

United States v. Okelberry, 112 F. Supp. 2d 1246 (D. Utah 2000)

A defendant’s guilty plea before a magistrate judge for the misdemeanor offense of violating

the Federal Eagle Protection Act, 16 U.S.C. § 668, was voluntary and proper even though the

defendant was not informed by his counsel or the magistrate judge that he might lose his

rights to graze cattle on federal property by pleading guilty. The defendant's counsel had no

obligation to advise the defendant of the collateral consequences of his guilty plea.

December 2013 7 INVENTORY
1. Sentencing Authority

2d Circuit:

United States v. Mordini, 366 F. 3d 93 (2d Cir. 2004)

A magistrate judge erred in sentencing the defendant convicted of a misdemeanor offense

to pay $9,741 in supervised probation costs where the maximum fine that defendant could

be sentenced to pay under the sentencing guidelines for the offense was $5,000.

4th Circuit:

United States v. Carroll, 397 F. Supp. 2d 668 (D. Md. 2005)

After the defendant’s conviction for Class A misdemeanor drug possession offenses, the

magistrate judge improperly applied the Sentencing Guidelines by failing to group the

multiple related drug possession counts together during the defendant’s sentencing, thereby

requiring the case to be remanded to the magistrate judge for re-sentencing. 

5th Circuit:

United States v. Sanchez, 258 F. Supp. 2d 650 (S.D. Tex. 2003)

The magistrate judge did not have authority to consider a motion to vacate sentence under

28 U.S.C. § 2255 in a misdemeanor case, even though the magistrate judge had imposed the

original sentence in the case. 

6th Circuit:

United States v. Payne , 2009 WL 5062099 (S.D. Ohio Dec. 3, 2009)

A magistrate judge rejected a plea agreement, concluding that the district court did not have

authority to order restitution in excess of $1,000 in a Class A misdemeanor case pursuant to

the relevant statutes, 18 U.S.C. § 641 and 18 U.S.C. § 3663A , where the alleged property

loss to the government resulting from Payne’s theft as set forth in the government’s

information appeared to total only $66.15. [See Information Memorandum No. 316 for a

more detailed summary of this case.]

9th Circuit:

United States v. McKittrick, 142 F. 3d 1170 (9th Cir. 1998), cert. denied, 525 U.S. 1072

(1999)

The magistrate judge who sentenced the defendant for the misdemeanor offense of

unlawfully taking, possessing, and transporting a protected wolf did not adequately explain

the basis for denying the defendant's request for reduction of sentence under the Federal

SentencingGuidelines based on the defendant's acceptance ofresponsibility, which therefore

required remand. 

10th Circuit:

United States v. Hanks, 2002 WL 1808767 (D. Kan. 2002)

A magistrate judge in a petty offense case did not improperly use alleged pending charges

against the defendant as a basis for imposing a more severe sentence against the defendant

December 2013 8 INVENTORY
than had been recommended in the plea agreement, where the magistrate judge reasonably

relied on information in the pre-sentencing investigative report. 

2. Probation and Supervised Release

Section 3401(d) of Title 18 provides that “[t]he probation laws shall be applicable to persons tried

by a magistrate judge under this section, and such officer shall have power to grant probation and

to revoke, modify, or reinstate the probation of any person granted probation by a magistrate judge. 

In addition, § 3401(h) provides that “[t]he magistrate judge shall have power to modify, revoke, or

terminate supervised release of any person sentenced to a term of supervised release by a magistrate

judge.

2d Circuit:

United States v. Curtis, 245 F. Supp. 2d 512 (W.D.N.Y. 2003)

A district judge upheld a magistrate judge’s decision that a defendant convicted on a

misdemeanor larceny charge could not be required to submit a DNA sample under the DNA

Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14132 et seq. as a condition of

probation.

United States v. Leaphart, 98 F. 3d 41 (2nd Cir. 1996)

A magistrate judge erred in imposing a two-year term of supervised release on a defendant

convicted for failing to appear to serve a 90-day incarceration sentence for misdemeanor

bank theft, where the maximum term of supervised release that could be imposed for the

offense was one year.

United States v. Jones, 1997 WL 706438 (S.D.N.Y. 1997)

A magistrate judge did not abuse her sentencing authority by requiring the defendant to seek

employment as a condition of her probation for misdemeanor theft of public assistance funds.

United States v. Martinez, 988 F. Supp. 975 (E.D. Va. 1998)

A magistrate judge had authority to restrict a defendant's driving activities for six months as

a condition of probation after the defendant pled guilty to a misdemeanor motor vehicle

offense. The penalty restricting the defendant's ability to drive was reasonably related to the

offense to which the defendant pled guilty. 

United States v. Raynor, 764 F. Supp. 1067 (D. Md. 1991)

The sentencing power of 18 U.S.C. § 3401(a) is broad enough to provide a magistrate judge

with authority to revoke supervised release in a case where a defendant consented to a

misdemeanor trial before a magistrate judge.

December 2013 9 INVENTORY
8th Circuit:

United States v. Cervantes, 420 F. 3d 792 (8 Cir. 2005) th

A magistrate judge did not err in imposing mandatory drug testing as a condition of

probation for a defendant with a history of drug abuse who pled guilty to the misdemeanor

offense of making a false statement with intent to defraud the Department of Housing and

Urban Development.

United States v. Kilpatrick, 347 F. Supp. 2d 693 (D. Neb. 2004)

A magistrate judge did not abuse his discretion or order excessive punishment when he

sentenced the defendants convicted of hunting violations on a national wildlife refuge to both

fines and probation, including a condition of probation that barred the defendants from all

hunting during the terms of their probation. 

10th Circuit:

United States v. Berrios, 120 Fed. Appx. 218 (10th Cir. 2004)

A magistrate judge did not have authority to order a defendant in a misdemeanor case to

undergo mental evaluation as a condition of pretrial release.

11th Circuit:

United States v. Burke, 1996 WL 170123 (M.D. Ala. 1996)

A magistrate judge had authority to sentence a misdemeanor defendant to a one-year term

of imprisonment and to a one-year term of supervised release, even where the total sentence

was greater than the statutorymaximum term of imprisonment for a misdemeanor. Because

sentences of imprisonment and supervised release are separate under federal law, a

magistrate judge does not exceed his or her sentencing authority under the Federal

Magistrates Act when imposing both sentences in a misdemeanor case.

3. Expungement of Conviction

2d Circuit:

United States v. Williams, 2012 WL 3886309 (W.D.N.Y. Sept. 6, 2012)

AfterWilliams was convicted in 2005 in the Western District of New York for misdemeanor

possession of marijuana, she moved in 2012 to have her conviction expunged. After noting

that there was a “substantial question whetherthe Court has ancillary jurisdiction or inherent

power to expunge a valid judicial record of conviction,” the magistrate judge stated that the

alleged hardships attributed by the defendant to her conviction, primarily her inability to

pursue career opportunities, were “a routine collateral consequence of a criminal conviction”

and are thus not the kind of “unusual and extraordinary hardship[s] that could justify the

exercise of equitable jurisdiction to expunge the judicial record of the conviction.”

Acknowledging that Williams “seem[ed] to have paid her debt to society,” the magistrate

judge nevertheless denied her expungement motion. [See Information Memorandum No.

325 for a more detailed summary of this case.]

December 2013 1 0 INVENTORY
4th Circuit: 

United States v. Harris, 847 F. Supp. 2d 828 (D. Md. 2012)

After Harris was convicted in 2004 in the District of Maryland for possession of a controlled

substance in violation of 21 U.S.C. § 844, he moved in 2011 to have his conviction

expunged. The presiding magistrate judge denied the motion, holding that the district court

did not have ancillary jurisdiction to grant the defendant’s motion for expungement and that

he could not expunge the conviction based solely on equitable grounds. [See Information

Memorandum No. 323 for a more detailed summary of this case.]

United States v. Steelwright, 179 F. Supp. 2d 567 (D. Md. 2004)

A magistrate judge had authority to expunge a misdemeanor conviction from a defendant’s

criminal record, but declined to do so under the particular circumstances of this case. 

(Opinion by a magistrate judge.)

8th Circuit:

United States v. Meyer, 439 F.3d 855 (8 Cir. 2006) th

A magistrate judge erred in ordering expungement of a defendant’s conviction for

misdemeanor violation of income tax laws, where the defendant’s motion to expunge

criminal records was based solely on equitable grounds that did not invoke the district court’s

ancillary jurisdiction, thus deprived the district court of jurisdiction over the matter. Where

the district court in general lacked jurisdiction to expunge the defendant’s conviction, the

magistrate judge did not have authority to expunge the conviction. 

9th Circuit:

United States v. Vasquez, 74 F. Supp. 2d 964 (S.D. Cal. 1999)

By consenting to the magistrate judge's authority to dispose of a Class A misdemeanor case,

the defendant conferred jurisdiction on the magistrate judge to rule upon defendant's motion

to expunge the conviction. The magistrate judge, however, declined to exercise authority

under the particular circumstances of this case. (Opinion by a magistrate judge.) 

C. Sufficiency of Consent Under 18 U.S.C. § 3401(b) in Class A Misdemeanor

Cases

In Class A misdemeanor cases, 18 U.S.C. § 3401(b) provides that a magistrate judge "may not

proceed to try the case unless the defendant...expressly consents to be tried before the magistrate

judge and expressly and specificallywaives trial, judgment, and sentencing by a district judge.” The

statute requires the magistrate judge to “carefully explain” to each defendant in a Class A

misdemeanor case that “he has a right to trial, judgment, and sentencing by a district judge.” Several

courts have considered what constitutes adequate consent to the authorityof the magistrate judge and

waiver of the right to Article III adjudication under this provision. 

December 2013 1 1 INVENTORY
3d Circuit:

United States v. Wright, 516 F. Supp. 1113 (E.D. Pa. 1981)

A defendant's mere consent to trial by a magistrate judge by itself was insufficient. The

defendant must specifically waive his or her right to trial by an Article III judge.

4th Circuit:

United States v. Johnson, 2008 WL 227228 (E.D.N.C. 2008)

Where a juvenile defendant, charged with Class A misdemeanor offenses of marijuana

possession and speeding violations, initially pleaded guilty and was sentenced to probation

by a magistrate judge, and where, after the defendant’s term of probation was revoked by the

magistrate judge, the government conceded that the defendant had not consented to the

magistrate judge’s jurisdiction, that the defendant was not advised by the magistrate judge

of his right to trial by a district judge or by jury, and that he had not signed a consent form,

the district judge vacated the judgment of the magistrate judge. 

5th Circuit:

United States v. Edgington, 727 F. Supp. 1083 (E.D. Tex. 1989), aff'd, 897 F.2d 527 (5th

Cir.), cert. denied, 495 U.S. 952 (1990)

The defendant's failure to object to the reference of a misdemeanor case to a magistrate judge

until after the judgment was entered constituted waiver. Under local court rules, the special

designation of a magistrate judge to exercise misdemeanor jurisdiction was not necessary.

7th Circuit:

United States v. Gochis, 256 F. 3d 739 (7 Cir. 2001) th

A magistrate judge's failure to inform a misdemeanor defendant of his right to trial by a

district judge was harmless error that did not invalidate the magistrate judge's authority to

dispose of the case under 18 U.S.C. § 3401 where the defendant signed a written consent

form.

8th Circuit:

United States v. Cervantes, 420 F. 3d 792 (8 Cir. 2005) th

In a case where the defendant pled guilty to a Class A misdemeanor before a magistrate

judge, although the defendant’s consent did not expressly appear in the record on appeal, 28

U.S.C. § 636(a)(5) did not require that the consent be in writing. In the case at bar, the

docket entries showed that the case was assigned to the magistrate judge ab initio, all the

proceedings were conducted by him, and the defendant made no objection, either in the

district court or on appeal, to the magistrate judge's role as the sentencing judge. Although

the appellate court found no reason to doubt that the defendant gave his consent, either

expressly or by clear implication, to having the magistrate judge serve as the sentencing

judge, the court urged counsel in future cases to affirmatively point out in their appellate

briefs whether or not the requisite consent was in fact given where a magistrate judge

performs the sentencing function under § 636(a)(5), and to include in the record on appeal

the materials that show such consent.

December 2013 1 2 INVENTORY
9th Circuit:

United States v. Neville, 985 F. 2d 992 (9th Cir.), cert. denied, 508 U.S. 943 (1993)

A defendant could not arbitrarily withdraw his consent to trial before a magistrate judge

when brought before the magistrate judge for a proceeding to revoke a term of supervised

release.

10th Circuit:

United States v. Simmonds, 179 F.R.D. 308 (D. Colo. 1998)

Where the defendant was advised clearly and concisely by the magistrate judge of his right

to trial before a district judge in a Class A misdemeanor case, the defendant was not entitled

to later revoke his consent to trial before the magistrate judge under 18 U.S.C. § 3401.

11th Circuit:

United States v. Hines, 2007 WL 1521477 (N.D. Fla. May 22, 2007)

A defendant, charged with a misdemeanor shoplifting offense, was deemed to have 

consented to have a magistrate judge take her guilty plea where the record showed that the

defendant, who was a college graduate and was represented by an experienced attorney at all

times, was advised of, and knowingly chose to waive, her right to have the guilty plea

accepted by a district judge. The magistrate judge therefore did not commit error in

accepting the defendant’s plea. 

D. Right to Jury Trial in Class A Misdemeanor Cases

The authority granted to magistrate judges under 18 U.S.C. § 3401 and Fed. R. Crim. P. 58 includes

the authority to preside over jury trials. It has long been recognized that the right to a jury trial exists

for a criminal offense where the potential term of imprisonment that might be imposed exceeds six

months, the federal statutory maximum incarceration term for a petty offense. Frank v. United

States, 395 U.S. 147 (1969). Magistrate judges thus have authority to conduct jury trials in Class

A misdemeanor cases with the defendant’s consent and waiver of the defendant’s right to

adjudication by an Article III judge under 18 U.S.C. § 3401(b).

Supreme Court:

Lewis v. United States, 518 U.S. 322 (1996)

A defendant had no right to a jury trial under the Sixth Amendment when prosecuted for

multiple petty offenses. The magistrate judge could preside over the case without a jury,

even where the potential total imprisonment penalty exceeded six months.

1st Circuit:

United States v. Sostre Narvaez, 279 F. Supp. 2d 82 (D.P.R. 2003)

A defendant accused of a federal petty offense of failing to pay overdue child support did not

have a right to a jury trial.

December 2013 1 3 INVENTORY
9th Circuit:

Rauch v. United States, 2007 WL 2900181 (E.D. Cal. 2007)

A magistrate judge held that a defendant was not entitled to a jury trial on the federal petty

offense of knowingly engaging in sexual contact with another person without that person's

consent which had resulted to a sentence of 36-months probation and 30 days of home

confinement in lieu of incarceration, despite the additional requirement that the defendant

register as a sex offender after his conviction. The magistrate judge therefore denied the

defendant’s petition for habeas corpus relief under 28 U.S.C. § 2255.

11th Circuit:

United States v. Chavez, 204 F.3d 1305 (11 Cir. 2000) th

A defendant convicted of a Class B misdemeanor and sentenced to probation with several

conditions that limited his liberty was not entitled to a jury trial.

E. Petty Offense Cases

A petty offense case is defined at 18 U.S.C. § 19 as "a Class B misdemeanor, a Class C

misdemeanor, or an infraction, for which the maximum fine is not greater than the amount set forth

for such an offense in section 3571(b)(6) or (7) in the case of an individual or section 3571(c)(6) or

(7) in the case of an organization." The maximum term of imprisonment for a Class B misdemeanor

is six months. 18 U.S.C. § 3581(7). Although the trial of a misdemeanor may proceed on an

indictment, information, or complaint, the trial in a petty offense case may also proceed on a citation

or violation notice. Fed. R. Crim. P. 58. Additional procedures applicable in petty offense cases are

set forth in Rule 58.

4th Circuit:

United States v. Glover, 381 F. Supp. 1139 (D. Md. 1974)

An assistant United States attorneywas not required to attend the trial of a petty offense case

before a magistrate judge. There was no due process violation when a non-attorney

prosecuted a petty offense case.

6th Circuit:

United States v. Lee, 2010 WL 1425057 (E.D. Tenn. April 8, 2010)

A district judge ruled that the defendant’s consent was not necessary under 18 U.S.C. §

3401(a) for the magistrate judge to have jurisdiction to try the case where Lee was charged

with a petty offense by violation notice, and further that Lee did not have a right to a de novo

trial before a district judge. [See Information Memorandum No. 316 for a more detailed

summary of this case.]

December 2013 1 4 INVENTORY
9th Circuit:

United States v. Broers, 776 F. 2d 1424 (9th Cir. 1985)

Where a magistrate judge neither conducted nor actively guided a non-attorney Forest

Service agent in the prosecution of a petty offense case, the fact that the prosecutor was not

an attorney did not violate due process.

United States v. Downin, 884 F. Supp. 1474 (E.D. Ca. 1995)

A magistrate judge’s refusal to appoint counsel for a defendant in a petty offense prosecution

for hauling untagged timber on national forest land violated the Federal Rules of Criminal

Procedure, thereby requiring reversal, where there was no evidence that the magistrate judge

made a pretrial determination that no sentence of imprisonment would be imposed. The use

of a lay prosecutor at the petty offense trial, however, did not violate due process and, even

if error, was considered harmless

F. Violation Notices and Collateral Forfeiture

Federal Rule of Criminal Procedure 58(d) governs situations where a court establishes procedures

that permit a defendant receiving a violation notice to pay a fixed sum (also know as forfeiting

collateral) in lieu of appearing in court. In particular, Fed. R. Crim. P. 58 states:

(d)(1) If the court has a local rule governing forfeiture of collateral, the court may

accept a fixed-sum payment in lieu of the defendant’s appearance and end the case,

but the fixed sum may not exceed the maximum fine allowed by law.

The issue of whether the payment of collateral in lieu of appearing in court is considered a plea of

guilty and criminal conviction on a defendant’s permanent record has not been resolved definitively

by courts, although some courts have adopted local rules that explicitly state that the forfeiture of

collateral will be considered a guilty plea in that jurisdiction.

2d Circuit:

United States v. Caruso, 2012 WL 3288654 (E.D.N.Y. Aug. 8, 2012)

After Caruso was convicted of conducting an unauthorized business operation on federal

park land based on a violation notice that the government subsequently amended by letter,

the defendant appealed his conviction to a district judge. The district judge affirmed the

magistrate judge’s ruling and conviction, concluding that (1) Caruso waived his objection

to the amended violation notice by not raising it earlier; (2) the government amendment of

the violation notice by letter to include an additional charge was proper; and (3) Caruso was

not prejudiced by the amended charging document since the business operation charge arose

“out of the same operative facts, involving the same witnesses, as the original charge.” [See

Information Memorandum No. 325 for a more detailed summary of this case.]

December 2013 1 5 INVENTORY
Dean v. United States, 418 F. Supp. 2d 149 (E.D.N.Y. 2006)

The defendant’s 1992 arrest and payment of a fine on a violation notice in the Eastern

District of New York on public lewdness charges did not constitute a guilty plea and a valid

criminal conviction because the defendant was not informed of his constitutional rights, was

not informed that the payment of the fine would constitute a conviction, and was not made

aware of the nature of the crime of which he had been accused, thereby warranting coram

nobis relief whereby the conviction was removed from the defendant’s record.

United States v. Roper, 2004 WL 3214758 (E.D.N.Y. Nov. 14, 2004)

Where no collateral forfeiture amount was set forth in the summons issued to the defendant,

the magistrate judge was free to impose a fine up to the maximum of $250 as set forth in the

Code of Federal Regulations, subject to proper consideration of the sentencing factors set

forth in 18 U.S.C. § 3553 and 18 U.S.C. § 3572. A magistrate judge was not limited by the

court’s outdated schedule of fines established by local rule. (Opinion by a magistrate judge.)

4th Circuit:

Scharf v. United States, 606 F. Supp. 379 (E.D. Va. 1985)

The defendant’s forfeiture of collateral on a violation notice constituted a guilty plea despite

the lack of notice on the ticket as to its legal effect. Collateral forfeiture for a misdemeanor

offense therefore constituted a conviction for the purposes of the special assessment

provision of the Victims of Crime Act of 1984. 

6th Circuit:

United States v. Porter, 513 F. Supp. 245 (M.D. Tenn. 1981)

The operation of a local collateral forfeiture rule violated the constitutional rights of a

defendant charged with violating a federal regulation prohibiting pet owners from bringing

unleashed animals into a federal recreation area, where the rule gave an individual the option

of forfeiting $15 collateral in lieu of a personal appearance before a magistrate judge, or

pleading not guilty and demanding a trial, in which case he would be subject to a potential

fine of $500 and up to six months' incarceration. Since the disparity between the forfeiture

amount and the possible penalty faced at trial was so extreme as to nullify any assurance that

a defendant who chose to mail in the forfeiture was actually guilty, the court concluded that

the $150 fine levied against the defendant after his trial would be reduced to $30.

9th Circuit:

United States v. Trimble, 487 F. 3d 752 (9 Cir. 2007) th

A magistrate judge violated equal protection principles undertheFifth Amendment when she

ordered a defendant to pay the $25 processing fee pursuant to a new violation notice form

while, at the same time, not assessing the fee against other defendants charged under an older

version of the violation notice form for similar traffic offenses on the same date.

December 2013 1 6 INVENTORY
United States v. Deng, 537 F. Supp. 2d 1116 (D. Hawaii 2008)

A violation notice issued to a defendant that referred only to the defendant’s alleged violation

of a state traffic law that carried only civil penalties and did not mention any federal statute

or regulation violated by the defendant did not provide the defendant with sufficient notice

that he was facing liability for federal criminal penalties. In addition, the term “local

magistrate” in 32 C.F.R. § 634.32(f) was properly interpreted to include United States

magistrate judges, thereby giving the federal court jurisdiction over cases arising under that

regulation.

10th Circuit:

United States v. Boyer, 935 F. Supp. 1138 (D. Colo. 1996)

A magistrate judge dismissed with prejudice the violation notice issued to a defendant for

speeding on a federal enclave where the statutory notice requirements for the regulations

upon which the petty offense was based were not met. (Opinion by a magistrate judge.)

11th Circuit:

United States v. Francisco, 413 Fed. Appx. 216 (11 Cir. 2011) th

The charging document was not amended improperly by the presiding magistrate judge

where the defendant was charged by violation notice with violating 36 C.F.R. § 4.23(a)(1),

and the allegations within the violation notice established that the defendant both operated

and was in physical control of the vehicle while under the influence of alcohol. Even if the

violation notice had been amended by the magistrate judge, the defendant was not prejudiced

by the amendment and it therefore constituted harmless error. [See Information

Memorandum No. 319 for a more detailed summary of this case.]

G. Assimilative Crimes Act [18 U.S.C. § 13]

Under the Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13, a defendant who commits a crime on

a federal enclave or another area within federal jurisdiction that would be punishable under state law

but has not been made punishable “by any enactment of Congress,” may be found “guilty of a like

offense and subject to like punishment” by assimilation of the state law into federal criminal law. 

Magistrate judges are frequently required to consider whether they have authority over state

misdemeanors and petty offenses committed on federal enclaves through application of the

Assimilative Crimes Act.

Supreme Court:

Lewis v. United States, 523 U.S. 155 (1998)

The purpose of the Assimilative Crimes Act is to use state law to fill the gaps in the federal

criminal law for offenses committed on federal enclaves.

December 2013 1 7 INVENTORY
2d Circuit:

United States v. McAllister, 119 F. 3d 198 (2nd Cir.1997), cert. denied, 522 U.S.1064 

(1998)

A magistrate judge improperly dismissed a misdemeanor DUI case against the defendant on

double jeopardy grounds. Prosecution for driving under the influence of alcohol on an army

base under the ACA, after the base commander revoked the defendant’s on-base driving

privileges and imposed other administrative sanctions, did not constitute double jeopardy. 

4th Circuit:

United States v. Imngren, 98 F. 3d 811 (4th Cir. 1996)

A magistrate judge erred in dismissing the case against the defendant for a DUI offense on

double jeopardy grounds. The administrative suspension of the defendant’s driving

privileges on a federal enclave and the subsequent criminal prosecution of the defendant for

the same DUI offense before a magistrate judge under the ACA did not constitute double

jeopardy.

United States v. Pierce, 75 F. 3d 173 (4th Cir. 1996)

A magistrate judge did not violate the ACA by sentencing a misdemeanor defendant to terms

of both imprisonment and supervised release for probation violations. Although North

Carolina state law did not have supervised release as a sentencing option, the state's parole

option was similar enough to supervised release to constitute "like punishment" under the

ACA. 

United States v. McCabe, 23 F. 3d 404 (4th Cir. 1994) (Table disposition -- text available on

WESTLAW)

Where the defendant violated conditions of supervised release after serving a one-year prison

sentence for violating a state "impaired driving" law on a federal enclave under the ACA, the

Act limited the magistrate judge's authority to sentence the defendant to no more than a total

of one year in prison.

United States v. Kelly, 989 F. 2d 162 (4th Cir.), cert. denied, 510 U.S. 854 (1993)

A magistrate judge had authority to try a defendant in federal court on a charge of attempted

theft adapted from Maryland law under the Assimilative Crimes Act, even though the

maximum sentence for the offense under state law was 18-months imprisonment. The

magistrate judge properly assumed jurisdiction over the case with an understanding that the

maximum sentence he would impose was 12-months imprisonment.

United States v. Clark, 361 F. Supp. 2d 502 (E.D. Va. 2005)

A magistrate judge was required to impose the state mandatoryminimum sentence for a DWI

offense under Virginia law under the Assimilative Crimes Act. 

December 2013 1 8 INVENTORY
United States v. Barber, 360 F. Supp. 2d 784 (E.D. Va. 2005)

A magistrate judge held in a misdemeanor DWI prosecution under Virginia state law

assimilated in federal court under the Assimilative Crimes Act that evidence of a defendant’s

blood alcohol level could be established by either a chemical blood test or a chemical breath

test, and that as a matter of comity the magistrate judge could exercise his discretion to

impose the enhanced penalties required by the Virginia DWI statute where a defendant’s

blood alcohol level was shown to be 0.15 or greater. (Opinion by a magistrate judge.)

United States v. Smith, 965 F. Supp. 756 (E.D. Va. 1997)

A magistrate judge erred in convicting a DUI defendant on multiple counts derived from a

single DUI incident. The ACA required the federal court to assimilate the substantive

criminal law of Virginia that a defendant should onlyreceive one conviction, rather than two,

for a single DUI violation. (Opinion by a magistrate judge.) 

United States v. Slatkin, 984 F. Supp. 916 (D. Md. 1995)

The trial jurisdiction of a magistrate judge under the ACA did not extend to Maryland state

misdemeanor offenses having maximum terms of imprisonment longer than two years, even

with an understanding that the maximum sentence the magistrate judge would impose was

12-months imprisonment. (Opinion by a magistrate judge.)

United States v. Kendrick, 636 F. Supp. 189 (E.D.N.C. 1986)

Under the ACA, a state DUI misdemeanor law with a possible two-year jail sentence may

be assimilated and the case could be referred to a magistrate judge, provided the punishment

imposed does not exceed one-year imprisonment or a $1,000 fine.

5th Circuit:

United States v. Teran, 98 F. 3d 831 (5th Cir. 1996)

A state law sentencing provision setting a two-year maximum penalty for a DWI offense

need not be assimilated under the Assimilative Crimes Act where it conflicts with federal

policy to provide magistrate judges with authority to dispose of misdemeanor cases. The

magistrate judge had authority to try the case after stating that the maximum sentence he

would impose was 12-months imprisonment. 

6th Circuit:

United States v. Jensen, 278 Fed. Appx. 548 (6 Cir. 2008) th

Where the defendant pled guilty before a magistrate judge in the Western District of

Kentucky to the misdemeanor offense of complicity to commit sexual assault on a federal

enclave in violation of Kentucky law as assimilated under the ACA, the magistrate judge did

not err in requiring the defendant to register as a sexual offender in Kentucky as a condition

of her probation.

December 2013 1 9 INVENTORY
7th Circuit:

United States v. Devenport, 131 F. 3d 604 (7th Cir. 1997)

A magistrate judge erred in denying the defendant's motion to dismiss a misdemeanor drunk

driving charge where Wisconsin law governing drunk driving offenses assimilated under the

Assimilative Crimes Act mandated only civil penalties for a first time offense.

9th Circuit:

United States v. Benz, 472 F.3d 657 (9 Cir. 2006) th

A magistrate judge committed reversible error when taking the defendant’s guilty plea in a

petty offense case when the magistrate judge failed to advise the defendant of the mandatory

minimum sentence of 10-days imprisonment required under California law as assimilated

under the Assimilative Crimes Act for the offense of driving with a license that had been

suspended for having been convicted of driving under the influence. 

United States v. Sylve, 135 F. 3d 680 (9th Cir. 1998)

The magistrate judge erred in denying a misdemeanor defendant's motion requesting

permission to enroll in a state "deferred prosecution" program. The state’s “deferred

prosecution” program was a form of punishment and thus a sentencing alternative that could

be imposed as a sentence by a federal judge under the Assimilative Crimes Act.

United States v. Reyes, 48 F. 3d 435 (9th Cir. 1995)

A magistrate judge properly sentenced a misdemeanor defendant to a term of supervised

release under the Assimilative Crimes Act. Supervised release under federal law and

probation under Hawaii state law were “like punishments” under ACA.

United States v. Leake, 908 F. 2d 550 (9th Cir. 1990)

Although the magistrate judge properly applied the Federal Sentencing Guidelines when

sentencing a misdemeanor defendant convicted under the ACA, rather than the state’s

sentencing scheme, the magistrate judge erred in basing an upward departure in the sentence

upon an earlier criminal convictions that had no similarity to the offense for which the

defendant was being sentenced.

United States v. Carlson, 900 F. 2d 1346 (9th Cir. 1990)

Because the ACA incorporates into federal law only the criminal laws of the jurisdiction

within which the federal enclave exists, the magistrate judge had no authority over the

defendant's case where the state law reads "a violation [of speeding laws] does not constitute

a crime."

United States v. Martinez, 2008 WL 2693187 (E.D. Cal. 2008) 

A magistrate judge ruled that the defendant could not be sentenced to a state pretrial

diversion program under the Assimilative Crimes Act as an alternative to being sentenced

to a term of imprisonment and a fine, where the defendant was charged with a federal

criminal offense, not a state offense assimilated to a federal enclave under the ACA, since 

December 2013 2 0 INVENTORY
neither the relevant federal statute nor Fed. R. Crim. P. 58 recognizes diversion as an

available sentencing option for the charge. 

10th Circuit:

United States v. Thomas, 68 F. 3d 392 (10th Cir. 1995)

A magistrate judge did not err in sentencing a misdemeanor defendant to a 90-day prison

sentence after several violations of conditions of probation, even though the defendant had

successfully completed a term of home detention. Home detention did not constitute

imprisonment under Kansas state law assimilated under the ACA. 

United States v. Talkington, 32 F. Supp. 2d 1262 (D. Kan. 1998)

A magistrate judge had authority under the Assimilative Crimes Act to try a defendant

arrested for a DUI offense on a federal enclave, even when Kansas state law defined the

offense as a felony.

United States v. Lewis, 1998 WL 804701 (D. Colo. 1998)

A defendant could not be tried for state law offenses of obstruction of a peace officer and

resisting arrest under the Assimilative Crimes Act where these offenses were covered by a

federal statute, thereby precluding assimilation under the ACA.

United States v. LeHouillier, 935 F. Supp. 1146 (D. Colo. 1996)

A defendant could be tried for a motor vehicle offense before a magistrate judge even where

the violation notice used by federal law enforcement personnel did not comply with state

notice requirements. The ACA assimilates state criminal law, not procedural requirements.

H. Appeal of Magistrate Judge's Decision

Section 3402 of Title 18 states:

In all cases of conviction by a United States magistrate judge an appeal of

right shall lie from the judgement of the magistrate judge to a judge of the

district court of the district in which the offense was committed. 

1st Circuit:

United States v. Manning-Ross, 362 F. 3d 874 (1 Cir. 2004) st

The court of appeals did not have jurisdiction over an appeal of a defendant’s misdemeanor

conviction before a magistrate judge for a DUI offense on a military base where the

defendant failed to first appeal his conviction to the district court under 18 U.S.C. § 3402. 

2d Circuit:

United States v. Jones, 117 F. 3d 644 (2d Cir. 1997)

A defendant challenging a misdemeanor conviction and sentence rendered by a magistrate

judge must appeal first to the district court under 18 U.S.C. § 3402. Only after the magistrate

December 2013 2 1 INVENTORY
judge's order was reviewed by the district court could the defendant appeal to the court of

appeals. 

United States v. Lamb, 23 F. Supp. 2d 457 (D. Vt. 1998)

An appeal lies from a judgment of conviction entered by a United States magistrate judge to

a judge of the district court of the district in which the offense was committed. The scope

of the appeal is the same as an appeal from a judgment of a district court to a court of

appeals. 

4th Circuit:

United States v. Baxter, 19 F. 3d 155 (4th Cir. 1994)

A magistrate judge's judgment of conviction and sentence of a misdemeanor defendant under

§ 3401 could only be appealed to the district court, not to the court of appeals. 

United States v. Hazelton, 279 F. Supp. 2d 710 (E.D. Va. 2003)

A magistrate judge’s ruling ordering a term of pre-judgment probation for a defendant who

pled guilty to the misdemeanor possession of marijuana was not a final order that could be

appealed to a district judge.

7th Circuit:

United States v. Smith, 992 F. 2d 98 (7th Cir. 1993)

The Federal Magistrates Act provides for appeal only to the district court after a

misdemeanor conviction before a magistrate judge. The court of appeals did not have

jurisdiction to hear a defendant's direct appeal of his misdemeanor conviction under the

Migratory Bird Treaty Act.

United States v. Van Fassan, 899 F. 2d 636 (7th Cir. 1990)

The court of appeals had jurisdiction to hear an appeal from a defendant's conviction before

a magistrate judge for violating the MigratoryBird TreatyAct after the district court affirmed

the conviction on appeal. Dictum: The court noted that it was odd that a misdemeanor

defendant gets two appeals from his conviction while a felony defendant gets only one

appeal.

9th Circuit:

United States v. Lee, 786 F. 2d 951 (9th Cir. 1986)

Where a magistrate judge "remanded" a petty offense case committed by a civilian on a

military base to a military court, the remand in effect was a dismissal appealable to the

district court under [Fed. R. Crim. P. 58]. 

December 2013 2 2 INVENTORY
United States v. Wylder, 590 F. Supp. 926 (D. Or. 1984)

The district judge's scope of review of a misdemeanor case on appeal is the same as an

appeal of a district judge's decision to a court of appeals. De novo review is applied to the

magistrate judge's decisions on questions of law.

10th Circuit:

United States v. Pethick, 513 F. 3d 1200 (10 Cir. 2007) th

Where a senior district judge presided over a defendant’s misdemeanor prosecution on DUI

charges on a federal enclave, including a jury trial, but then became seriously ill, resulting

in a magistrate judge entering the final judgment and the sentence in the case with the

defendant’s consent, and where the defendant appealed the case directly to the court of

appeals, the appellate court did not have jurisdiction to hear the appeal. 

December 2013 2 3 INVENTORY
§ 4. NON-CASE-DISPOSITIVE MATTERS UNDER 28 U.S.C. § 636(b)(1)(A)

A. In General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Authority of Magistrate Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2. Procedural Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

3. District Court’s Supervisory Authority and Standard of Review. . . . . . . . 5

4. Failure to Appeal to District Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

5. Appellate Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. Pretrial Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1. Motions to Proceed In Forma Pauperis (28 U.S.C. § 1915). . . . . . . . . . . 11

2. Motions for Leave to Amend.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

3. Motions to Remand. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

4. Motions to Consolidate, Bifurcate, and Sever Trials.. . . . . . . . . . . . . . . . 15

5. Motions for Jury Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

6. Motions to Intervene. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

7. Motions to Strike Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

8. Discovery Motions and Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

9. Motions to Quash Subpoena. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

10. Letters Rogatory [28 U.S.C. § 1782]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

11. Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

12. Motions to Disqualify Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

13. Motions for Self-Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

14. Garcia Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

15. Sufficiency of Pleas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

16. Motions to Certify Order for Interlocutory Appeal. . . . . . . . . . . . . . . . . . 28

17. Grand Jury Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

18. Subpoenas Duces Tecum [Fed. R. Crim. P. 17]. . . . . . . . . . . . . . . . . . . . 28

19. Motions to Transfer Venue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

20. Conditional Class Certification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

21. Settlement Conferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

22. Competency to Stand Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

23. Stay of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

24. Appointment of Receiver.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

25. Motions Concerning Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

26. Miscellaneous Pretrial Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

C. Postjudgment Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

1. Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

2. Discovery Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

3. Appointment of Receiver.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

D. Other Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
§ 4. NON-CASE-DISPOSITIVE MATTERS UNDER 28 U.S.C. § 636(b)(1)(A)

Section 636(b)(1)(A) states that “a [district] judge may designate a magistrate judge to hear and

determine any pretrial matter pending before the court....” All matters deemed non-case-dispositive

of a claim or defense before the court may be referred to a magistrate judge under this provision. 

Several case-dispositive motions are excepted specifically from this provision. The excepted

motions and other case-dispositive motions may be referred to magistrate judges under

§ 636(b)(1)(B). See Section 5, infra.

A. In General

Section 636(b)(1) begins with the phrase, “Notwithstanding any provision of law to the contrary.” 

Both the House and Senate Reports to the 1976 revisions of the Federal Magistrates Act contain the

following statement:

This language is intended to overcome any problem which may be caused by the fact

that scattered throughout the code are statutes which refer to “the judge” or “the

court”. It is not feasible for the Congress to change each of those terms to read “the

judge or a magistrate”. It is, therefore, intended that the permissible assignment of

additional duties to a magistrate shall be governed by the revised section 636(b),

“notwithstanding any provision of law to the contrary” referring to “judge” or

“court”. H.R. Rep. No. 1609, 94th Cong., 2d Sess. 9 (1976); S. Rep. No. 625, 94th

Cong., 2d Sess. 7 (1976). 

This language is applicable to matters referred under both §§ 636(b)(1)(A) and (b)(1)(B).

1. Authority of Magistrate Judge

2d Circuit:

Litton Industries, Inc. v. Lehman Bros. Kuhn Loeb, Inc., 124 F.R.D. 75 (S.D.N.Y. 1989)

Although the magistrate judge may not use pressure tactics to coerce a party into settling a

claim, the magistrate judge’s acceleration of the deposition schedule in a pretrial discovery

order in this case did not constitute undue coercion. Filing an objection to the magistrate

judge’s order does not serve to stay the effect of that order.

6th Circuit:

Pauley v. United Operating Co., 606 F. Supp. 520 (E.D. Mich. 1985)

Although pretrial matters were originally referred under § 636(b)(1)(A), the magistrate judge

acted properly in issuing a report and recommendation when it became apparent that

case-dispositive relief was sought. The district judge amended the order of reference nunc

pro tunc.

December 2013 2 INVENTORY
9th Circuit:

Bhan v. NME Hospitals, Inc., 929 F.2d 1404 (9th Cir.), cert. denied, 502 U.S. 994 (1991)

Opportunity for clearly erroneous review by a district judge is sufficient to prevent a 

§ 636(b)(1)(A)referral to amagistrate judge from constituting an unconstitutional delegation

of authority.

Ainsworth v. Vasquez, 759 F. Supp. 1467 (E.D. Cal. 1991)

The court’s inherent powers, as well as its obligation and authority to achieve the rational

ends of the law, are sufficiently broad to permit a magistrate judge to perform a Neuschafer

hearing, asking the habeas corpus prisoner questions concerning unexhausted claims.

Laxalt v. McClatchy, 109 F.R.D. 632 (D. Nev. 1986)

The magistrate judge had discretion under § 636(b)(1)(A) to determine the sequence to be

followed in deciding issues raised in a pretrial motion. The district court upheld an order

requiring a party to argue jurisdictional issue at same time as a discovery matter.

11th Circuit:

Lancer Arabians, Inc. v. Beech Aircraft Corp., 723 F. Supp. 1444 (M.D. Fla. 1989)

The court construed the magistrate judge’s order to strike a claim for punitive damages,

entered under § 636(b)(1)(A), as a report and recommendation on a motion to dismisssubject

to de novo determination.

D.C. Circuit:

In re Subpoena Duces Tecum Issued to Commodity Futures Trading Commission, 439 F.3d

740 (D.C. Cir. 2006)

A magistrate judge’s discovery ruling in a civil case in the Eastern District of California

should not be given collateral estoppel effect in a related action in the district court for the

District of Columbia where a party sought production of documents held by the Commodity

Futures Trading Commission through a subpoena.

Applegate v. Dobrovir, Oakes, and Gebhardt, 628 F. Supp. 378 (D.D.C. 1985), aff’d, 

809 F.2d 930 (D.C. Cir.), cert. denied, 481 U.S. 1049 (1987)

While the order of reference to conduct pretrial proceedings did not specifically authorize

the magistrate judge to prepare reports and recommendations on case-dispositive motions

such as summary judgment motions, such duties are an inherent element of pretrial

proceedings in general.

2. Procedural Requirements

Rule 72(a) of the Federal Rules of Civil Procedure and Rule 59(a) of the Federal Rules of Criminal

Procedure govern non-case-dispositive motion practice beforemagistrate judges. Proceedings before

the magistrate judge are to be conducted “promptly.” Civil Rule 72(a) provides that “[a] party may

serve and file objections to the order within 10 days after being served with a copy. A partymay not

assign as error a defect in the order not timely objected to.” Criminal Rule 59(a) provides that “[a]

party may serve and file objections to the order within 10 days after being served with a copy of a

December 2013 3 INVENTORY
written order or after the oral order is stated on the record, or at some other time the court sets.... 

Failure to object in accordance with this rule waives a party’s right to review.”

2d Circuit:

Ehret v. New York City Dept. of Social Services, 102 F.R.D. 90 (E.D.N.Y. 1984)

Oral determinations by a magistrate judge in a discovery dispute constituted final orders

under § 636(b)(1)(A).

3d Circuit:

In re Gabapentin Patent Litigation, 312 F. Supp. 2d 653 (D.N.J. 2004)

A written order by the magistrate judge ruling on a non-case-dispositive matter was not

necessary to preserve review by the district judge where the magistrate judge’s oral decision

was clearly reflected in the transcript of the proceedings and the docketed minute entry of the

same. 

Delco Wire & Cable, Inc. v. Weinberger, 109 F.R.D. 680 (E.D. Pa. 1986)

The district court has the discretion to refer a non-case-dispositive pretrial matter to a

magistrate judge for a report and recommendation and de novo determination.

4th Circuit:

Proa v. NRT Mid Atlantic, Inc., 608 F. Supp. 2d 690 (D. Md. 2009)

A district judge held that he was not required to refer a discovery dispute to a particular

magistrate judge, and that the court’s local procedure which authorized the court’s chief

magistrate judge to re-assign discovery matters to another magistrate judge was proper and

valid. [See Information Memorandum No. 313 for a more detailed summary of this case.]

9th Circuit:

McKeever v. Block, 932 F.2d 795 (9th Cir. 1991)

A prisoner petitioner’s letter in response to the magistrate judge’s order to dismiss the case

with leave to amend pleadings was not an adequate objection under Fed. R. Civ. P. 72.

D.C. Circuit:

CNPq-Conselho Nacional de Deseenvolvimento Cientifico e Technologico v. Inter-Trade,

Inc., 50 F.3d 56 (D.C. Cir. 1995)

A three-day extension for service bymail under Fed. R. Civ. P. 6 extended the ten-day period

for objections to the magistrate judge’s order by three calendar days, rather than three

business days.

Federal Savings & Loan Ins. Corp. v. Commonwealth Land Title Ins. Co., 130 F.R.D. 507

(D.D.C. 1990)

A motion to “reconsider” a magistrate judge’s ruling that merely brings to the magistrate

judge’s attention documents not previously considered is not an appeal under Fed. R. Civ.

P. 72 and need not be filed within ten days.

December 2013 4 INVENTORY
3. District Court’s Supervisory Authority and Standard of Review

Section 636(b)(1)(A), Fed. R. Civ. P. 72, and Fed. R. Crim. P. 59 provide that a district judge may

modify or set aside any part of a magistrate judge’s order that is clearly erroneous or contrary to law. 

The district judge also retains general supervisory powers over the case, including the power to

rehear or reconsider any matter sua sponte.

1st Circuit:

Jones v. Secord, 684 F.3d 1 (1st Cir. 2012)

The First Circuit held that a district judge was not prohibited from granting a defendant’s

motion for summary judgment under Fed. R. Civ. P. 56, even though there was a pending

discovery dispute before a magistrate judge in the same case. Observing that “[f]ederal

district courts are busy places, and judges often have crowded dockets,” the appellate court

further concluded that, “[i]t is not the court’s responsibility to dig through the record in a

particular case unsolicited and determine whether some timing problem might exist in

connection with a summary judgment motion. Rather, Rule 56(d) places that responsibility

squarely on the shoulders of the party opposing the motion.” The court concluded that the

district court did not abuse its discretion by not engaging sua sponte in an independent

review of the docket, noting that to hold otherwise would be “the functional equivalent of

expecting the court to do the lawyer’s job.” [See Information Memorandum No. 325 for a

more detailed summary of this case.]

2d Circuit:

Katz v. Morgenthau, 892 F.2d 20 (2d Cir. 1989)

The district court did not err when it chose not to refer non-case-dispositive motions to a

magistrate judge for more expeditious resolution.

Sheppard v. Beerman, 822 F. Supp. 931 (E.D.N.Y. 1993), aff’d in part, vacated in part, 18

F.3d 147 (2d Cir.), cert. denied, 513 U.S. 816 (1994)

The district court has the discretionary authority to withdraw from a magistrate judge pretrial

case management duties that were referred originally under § 636(b)(1)(A).

Gay Men’s Health Crisis v. Sullivan, 733 F. Supp. 619 (S.D.N.Y. 1989)

A magistrate judge’s discovery order denying the defendant’s claims of privilege was

remanded by a district judge to the magistrate judge for in camera review of disputed

documents. 

3d Circuit:

Kiskidee, LLC v. Certain Interested Underwiters at Lloyd’s of London Subscribing to Policy

No. NB043060B, 2012 WL 1067918 (D.V.I. Mar.26, 2012)

A district judge ruled that he had authority to sua sponte review and reverse a magistrate

judge’s non-case-dispositive order bifurcating a bad faith claim through discovery and trial

until liability and damages on the underlying breach of contract claim had been determined,

even where the parties had not filed timely objections to the magistrate judge’s original

ruling. [See Information Memorandum No. 325 for a more detailed summary of this case.]

December 2013 5 INVENTORY
Grant v. Omni Health Care Systems of NJ, Inc., 427 Fed. Appx.156 (3d Cir. 2011)

A district judge may withdraw a case referred to a magistrate judge for pretrial duties under

28 U.S.C. § 636(b) for any reason without having to establish good cause or extraordinary

circumstances for the withdrawal. [See Information Memorandum No. 321 for a more

detailed summary of this case.]

Haines v. Liggett Group, Inc., 975 F.2d 81 (3d Cir. 1992)

The district court erred when reconsidering a magistrate judge’s discovery ruling under 

§ 636(b)(1)(A) by expanding the record to consider evidence not considered by the

magistrate judge. The court of appeals issued a writ of mandamus vacating the district

court’s discovery order that had reversed the magistrate judge’s discovery ruling under the

“clearly erroneous” standard.

Saldi v. Paul Revere Life Ins. Co., 224 F.R.D. 169 (E.D. Pa. 2004)

A district court may only reconsider a magistrate judge’s decision on a non-case-dispositive

pretrial issue such as a discovery order when the magistrate judge’s decision is “clearly

erroneous or contrary to law.” When a magistrate judge’s decision is on a highly

discretionarymatter, other decisions of this court have determined that the clearly erroneous

standard implicitly becomes an abuse of discretion standard. 

Sellon v. Smith, 112 F.R.D. 9 (D. Del. 1986)

Where a party failed to raise an attorney-client privilege argument after the referral of all

discovery matters to the magistrate judge, a remand by the district judge to the magistrate

judge was appropriate to address issues of privilege and waiver.

4th Circuit:

Ambrose v. Southworth Products Corp., 953 F. Supp. 728 (W.D. Va. 1997)

The district court found clear error when reviewing the magistrate judge’s order denying a

motion to amend the complaint. The magistrate judge had failed to consider the alternate

claims in the amended complaint, which were before the court in the motion papers filed but

had not been raised at oral argument.

Federal Deposit Ins. Corp. v. United States, 527 F. Supp. 942 (S.D. W. Va. 1981)

The magistrate judge’s failure to make sufficient findings with respect to whether a partyhad

waived an objection concerning privilege, or had put the privileged matters at issue by its

pleadings, required remand.

5th Circuit:

Resolution Trust Corp. v. Sands, 151 F.R.D. 616 (N.D. Tex. 1993)

The district court would not reverse a magistrate judge’s denial of a motion for a protective

order under the “clearly erroneous” standard of review where the plaintiff could only show

that other magistrate judges in similar cases had decided such motions differently. The

plaintiff could not show that the magistrate judge’s decision was contrary to law, clearly

erroneous regarding the facts of the case, or an abuse of the magistrate judge’s discretion in

supervising discovery in the case.

December 2013 6 INVENTORY
7th Circuit:

Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752 (7 Cir. 2009) th

A district judge did not err in reconsidering sua sponte a magistrate judge’s ruling that had

permitted the plaintiff to amend her complaint, even though the defendant had not objected

to the magistrate judge’s ruling. [See Information Memorandum No. 315 for a more detailed

summary of this case.]

Phillips v. Raymond Corp., 213 F.R.D. 521 (N.D. Ill. 2003)

A district judge may reconsider a magistrate judge’s ruling on a discovery matter in the

absence of objections and may alter it, though it may not be clearly erroneous.

10th Circuit:

Allen v. Sybase, 468 F.3d 642 (10th Cir. 2006)

A party’s failure to seek timely review of a magistrate judge’s non-case-dispositive order

does not strip the district court of its power to revisit the issue.

Claytor v. Computer Associates International, Inc, 211 F.R.D. 665 (D. Kan. 2003)

When reviewing a magistrate judge’s order denying the plaintiff’s motion to extend time for

conducting discovery, the district judge would not consider circumstances that were not

brought to the attention of the magistrate judge by the plaintiff, since review was under the

clearly erroneous standard. 

Branch v. Mobil Oil Corp., 143 F.R.D. 255 (W.D. Okla. 1992)

A party could not present additional evidence to the district judge reviewing the magistrate

judge’s discovery order concerning application of attorney-client privilege to documents

where the evidence had not been first submitted to the magistrate judge.

Comeau v. Rupp, 762 F. Supp. 1434 (D. Kan. 1991)

The clearly erroneous standard of review under Fed. R. Civ. P. 72 requires a district judge

to affirm a non-case-dispositive decision of a magistrate judge unless the court is left with

the definite and firm conviction that a mistake has been made. Since magistrate judges are

afforded broad discretion to resolve non-case-dispositive discovery disputes, the court will

overrule the magistrate judge’s determination only if such discretion is abused.

4. Failure to Appeal to District Court

Although the Federal Magistrates Act is silent concerning the possible consequences of a party’s

failure to object to a magistrate judge’s orderin a non-case-dispositive matter, Fed. R. Civ. P. 72 and

Fed. R. Crim. P. 59 make review by the district judge mandatory upon a party’s filing of objections

“within 10 days after being served with a copy,” Fed. R. Civ. P. 72, or “within 10 days after being

served with a copy of a written order or after the oral order is stated on the record, or at some other

time the court sets,” Fed. R. Crim. P. 59. Criminal Rule 59(a) expressly provides that “[f]ailure to

object in accordance with this rule waives a party’s right to review.” Civil Rule 72(a) provides that

“[a] party may not assign as error a defect in the order not timely objected to.”

December 2013 7 INVENTORY
Supreme Court:

Thomas v. Arn, 474 U.S. 140 (1985)

Nothing in the Federal Magistrates Act or its legislative history forbids application of the

waiver rule when a party fails to file timely objections to a magistrate judge’s ruling.

1st Circuit:

Surview Cond. Assoc. v. Flexel Int’l, Ltd., 116 F.3d 962 (1st Cir. 1997)

Failure to file timely objections to a magistrate judge’s order on a non-case-dispositive

matter precludes review by the court of appeals.

United States v. Akinola, 985 F.2d 1105 (1st Cir. 1993)

The court of appeals does not have jurisdiction to consider an appeal of a magistrate judge’s

ruling in a criminal case where the party did not file objections in the district court.

Pagano v. Frank, 983 F.2d 343 (1st Cir. 1993)

If a party fails to file timely objections to a magistrate judge’s orderin a non-case-dispositive

pretrial matter (in this case, a motion to amend the complaint) and obtain district judge

review, “he cannot later leapfrog the trial court and appeal the ruling directly to the court of

appeals.”

2d Circuit: 

Caidor v. Onondaga County, 517 F.3d 601 (2d Cir. 2008)

A pro se litigant who fails to file timely objections to a magistrate judge’s order on a noncase-dispositive matter waives the right to appellate review of that order even absent express

notice from the magistrate judge that failure to object within ten days will preclude appellate

review.

3d Circuit: 

United States v. Polishan, 336 F.3d 234 (3d Cir. 2003), cert. denied, 540 U.S. 1220 (2004)

Although no provision in the Federal Rules of Criminal Procedure sets a time for filing

objections to a magistrate judge’s non-case-dispositive order, where a local rule provides a

time within which objections must be filed, failure to comply with the local rule results in

a waiver of a party’s right to appeal the magistrate judge’s ruling.

United Steelworkers of America v. New Jersey Zinc Co., Inc., 828 F.2d 1001 (3d Cir. 1987)

A party’s failure to object to a magistrate judge’s § 636(b)(1)(A) ruling waives appellate

review.

5th Circuit:

Colburn v. Bunge Towing, Inc., 883 F.2d 372 (5th Cir. 1989)

The court of appeals does not have jurisdiction to hear an appeal where a party does not

appeal the magistrate judge’s non-case-dispositive order to a district judge.

December 2013 8 INVENTORY
7th Circuit:

United States v. Brown, 79 F.3d 1499 (7th Cir.), cert. denied, 519 U.S. 875 (1996)

Although the failure to challenge before a district judge a magistrate judge’s pretrial rulings

under § 636(b)(1)(A) waives the right to attack such rulings on appeal, this rule is not

jurisdictional and thus should not be employed to defeat the ends of justice; in this case, the

court excused the party’s failure to object.

9th Circuit:

Cole v. United States District Court for the District of Idaho, 366 F.3d 813 (9th Cir. 2004)

Mandamus relief in the appellate court was not a proper remedy for litigants attempting to

overturn a sanction ruling issued by a magistrate judge where the petitioners did not file

objections to the magistrate judge’s ruling in the district court. 

United States v. Abonce-Barrera, 257 F.3d 959 (9th Cir. 2001)

A party in a criminal case is not required to challenge a magistrate judge’s decision on a noncase-dispositive matter in the district court in orderto seek appellate review of the magistrate

judge’s order.

Simpson v. Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 1996)

A party aggrieved by a magistrate judge’s order imposing discovery sanctions “forfeits” his

right to appellate review if he fails to file objections with the district judge.

10th Circuit:

Pippinger v. Rubin, 129 F.3d 519 (10th Cir. 1997)

The court of appeals cannot review a magistrate judge’s non-case-dispositive discoveryorder 

unless the party requesting review initially objected to the magistrate judge’s orderin writing

in the district court within ten days of receiving a copy of the order. 

11th Circuit:

United States v. Brown, 441 F.3d 1330 (11th Cir. 2006), cert. denied, 549 U.S 1182 (2007)

Federal Rule of Criminal Procedure 59(a) is in complete accord with circuit case law which

clearly prohibits the court from considering the defendant’s argument on appeal where the

defendant did not first object in the district court.

5. Appellate Review

Since orders in non-case-dispositive pretrial proceedings are interlocutory, immediate appeals to the

court of appeals of district judges’ orders reviewing magistrate judges’ non-case-dispositive

decisions generally are not permitted.

3d Circuit:

State of New York v. United States Metals Refining Co., 771 F.2d 796 (3d Cir. 1985)

Because a district court’s order affirming the magistrate judge’s temporary protective order

under Fed. R. Civ. P. 26 was not a final order or a collateral order, appellate review was not

permitted. 

December 2013 9 INVENTORY
Smith v. Bic Corp., 869 F.2d 194 (3d Cir. 1989)

A district court’s order affirming a magistrate judge’s denial of a motion for protective order

was reviewed by the court of appeals under the collateral order doctrine. 

4th Circuit:

MDK, Inc. v. Mike’s Train House, Inc., 27 F.3d 116 (4th Cir.), cert. denied, 513 U.S. 1000

(1994)

In general, discovery orders are not immediately appealable, and the district court’s order

affirming the magistrate judge’s order for the production of documents did not fall under the

collateral order exception to the finality requirement.

5th Circuit:

Texaco, Inc. v. Louisiana Land and Exploration Co., 995 F.2d 43 (5th Cir. 1993)

On the appeal of a magistrate judge’s order compelling discovery, the court noted that the

circuit’s general rule is that a discovery order incident to a pending action is not subject to

appeal.

7th Circuit:

Richards v. Firestone Tire & Rubber Co., 928 F.2d 241 (7th Cir. 1991)

The finality doctrine in 28 U.S.C. § 1291 barred the appeal of a district court’s order of

dismissal without prejudice but with conditions as to refiling the case, since the purpose of

the request for dismissal was to evade the magistrate judge’s discovery order.

8th Circuit:

United States v. Brakke, 813 F.2d 912 (8th Cir. 1987)

Pretrial orders issued by a district court affirming discovery orders by the magistrate judge

are not final orders under 28 U.S.C. § 1291 and do not fall within the collateral order

exception to the final judgment rule. The court of appeals therefore had no jurisdiction over

the appeal.

B. Pretrial Matters

In the 1976 amendments to the Federal Magistrates Act, Congress intended to clarify and define

further the duties that may be assigned to magistrate judges under § 636(b). The pretrial matters

referable under § 636(b)(1)(A) include “a great variety of preliminary motions and matters which

can arise in the preliminary processing of either a criminal or a civil case.” H.R. Rep. No. 1609, 94th

Cong., 2d Sess. 9 (1976); S. Rep. No. 625, 94th Cong., 2d Sess. 7 (1976). 

Most pretrial motions and other matters arising under the federal rules of civil and criminal

procedure are referred routinely to magistrate judges. A compilation of all such motions is beyond

the scope of this study. This subsection and Section 5, infra, however, present cases where courts

have attempted to define magistrate judge authority in pretrial matters referred under § 636(b)(1). 

A common issue is whethersuch duties are considered to be dispositive or non-dispositive of claims

or defenses before the court. 

December 2013 10 INVENTORY
1. Motions to Proceed In Forma Pauperis (28 U.S.C. § 1915)

Magistrate judges have uniformly been held to have authority to issue a final order granting a motion

to proceed in forma pauperis under 28 U.S.C. § 1915 as a non-case-dispositive matter. By contrast,

most, though not all, courts have concluded that the denial of a plaintiff’s motion to proceed in forma

pauperis under § 1915 is a case-dispositive matter analogous to a motion to dismiss for which

magistrate judges must prepare a report and recommendation. See Section 5, infra, for cases holding

that the denial of a motion to proceed in forma pauperis is a case-dispositive matter.

5th Circuit:

Wilson v. Becker, 2008 WL 81286 (E.D. La. 2008)

A district judge discussed disagreement over whether denial of a motion to proceed in forma

pauperis is a non-case-dispositive or case-dispositive matter, but declined to make a final

determination.

Poche v. Butler, 2007 WL 2695350 (E.D. La. 2007)

A district judge stated the view that the magistrate judge’s order denying permission to

proceed in forma pauperis could be reviewed under the “clearly erroneous or contrary to law”

standard, but noted that the result would be the same if the magistrate judge’s order were

reviewed de novo.

Burks v. United States Post Office, 2008 WL 2626991 (W.D. La. 2008)

After discussing whether the denial of a motion to proceed in forma pauperis is a non-casedispositive or case-dispositive matter, the district judge declined to make a final

determination on the issue, concluding that the motion would fail under either standard.

Seaberry v. Stalder, 2006 WL 1635707 (W.D. La. 2006)

A district judge reviewed a magistrate judge’s order denying a motion for in forma pauperis

status under the clearly erroneous standard.

6th Circuit:

Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990)

A magistrate judge may be referred petitions to proceed in forma pauperis under

§ 636(b)(1)(B). The magistrate judge may issue an order granting such a motion, but may

only make a recommendation to deny such a motion. 

9th Circuit:

Gamboa v. City of Fresno, 2007 WL 2069938 (E.D. Cal. 2007)

A magistrate judge may grant a motion to proceed in forma pauperis, but exceeds his

authority when he denies a motion outright. 

2. Motions for Leave to Amend

In most circumstances, courts have held that motions for leave to amend pleadings are non-casedispositive matters subject to the clearly erroneous or contrary to law standard of review. See

Chapter 5, infra, for additional opinions on this issue. 

December 2013 11 INVENTORY
1st Circuit:

Pagano v. Frank, 983 F.2d 343 (1st Cir. 1993)

A motion to amend a complaint is a non-case-dispositive pretrial matter subject to the clearly

erroneous or contrary to law standard of review. If a party fails to file timely objections and

obtain district judge review, “he cannot later leapfrog the trial court and appeal the ruling

directly to the court of appeals.”

Jacobsen v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 594 F. Supp. 583 (D. Me.

1984)

Motions to amend pleadings, to strike joinder of nondiverse parties, and to remand for lack

of diversity jurisdiction are non-case-dispositive matters.

2d Circuit:

Rubin v. Valicenti Advisory Services, Inc., 471 F. Supp. 2d 329 (W.D.N.Y. 2007)

A motion for leave to amend a pleading is properly considered a non-case-dispositive matter

under § 636(b) that is reviewed under the clearly erroneous or contrary to law standard of

review. 

Palmer v. Monroe County Sheriff, 378 F. Supp. 2d 284 (W.D.N.Y. 2005)

A motion to amend a complaint is a non-case-dispositive matter under 28 U.S.C.

§ 636(b)(1)(A), and objections to the magistrate judge’s order disposing of the motion are

subject to review by the district court under the clearly erroneous or contrary to law standard.

Acme Electric Corp. v. Sigma Instruments, Inc., 121 F.R.D. 26 (W.D.N.Y. 1988)

A motion to amend a complaint to add a nondiverse party is a non-case-dispositive matter,

even if it results in remand of the case to the state court.

4th Circuit:

Stonecrest Partners, LLC v. Bank of Hampton Roads, 770 F. Supp. 2d 778 (E.D.N.C. 2011)

A magistrate judge’s order denying parties’ motion for leave to amend their pleadings was

a non-case-dispositive matter which was properly reviewed under the clearly erroneous or

contrary to law standard, despite the parties’ contention that the order disposed of claims they

sought to add to their complaint. [See Information Memorandum No. 319 for a more

detailed summary of this case.]

Ambrose v. Southworth Products Corp., 953 F. Supp. 728 (W.D. Va. 1997)

A motion to amend is a non-case-dispositive motion, and a magistrate judge’s ruling on it

is subject to reversal only upon a finding that the order is clearly erroneous or contrary to

law. 

5th Circuit:

Bryant v. Mississippi Power & Light Co., 722 F. Supp. 298 (S.D. Miss. 1989)

A motion to amend a complaint, resulting in remand for lack of subject matter jurisdiction,

was treated as a non-case-dispositive matter.

December 2013 12 INVENTORY
9th Circuit:

Sana v. Hawaiian Cruises, Ltd., 961 F. Supp. 236 (D. Haw. 1997), rev’d on other grounds,

181 F.3d 1041 (9th Cir. 1999)

A motion to amend is a non-case-dispositive pretrial matter subject to review under the

clearly erroneous or contrary to law standard of review. 

3. Motions to Remand

Courts disagree over whether remand orders are dispositive of a claim or defense before the court. 

See Section 5, infra, for additional opinions on this issue.

1st Circuit:

Cok v. Family Court of Rhode Island, 985 F.2d 32 (1st Cir. 1993)

28 U.S.C. § 1447(d) bars review by the court of appeals of a district judge’s order affirming

a magistrate judge’s remand order, whetherthe district judge reviewed the magistrate judge’s

order as a final order or as a report and recommendation to which timely objections were

filed.

Delta Dental of Rhode Island v. Blue Cross &Blue Shield of Rhode Island, 942 F. Supp. 740

(D.R.I. 1996)

A motion to remand is a non-case-dispositive matter under § 636(b)(1)(A), subject to the 

clearly erroneous or contrary to law standard of review.

4th Circuit:

Chandler v. Cheesecake Factory Restaurants, Inc, 239 F.R.D. 432 (M.D.N.C. 2006)

A magistrate judge has authority to issue an order on a motion to remand as a non-casedispositive pretrial matter under 28 U.S.C. § 636(b)(1)(A). (Opinion by a magistrate judge.)

 

Wachovia Bank v. Deutsche Bank Trust Co., 397 F. Supp. 2d 698 (W.D.N.C. 2005)

A motion to remand is a non-case-dispositive matter under 28 U.S.C. § 636(b)(1)(A) and

therefore the magistrate judge had authority to enter a final order remanding the case to state

court.

Young v. James, 168 F.R.D. 24 (E.D. Va. 1996)

Motions to remand are non-case-dispositive matters and are reviewable under a clearly

erroneous or contrary to law standard. 

Long v. Lockheed Missiles and Space Co., Inc., 783 F. Supp. 249 (D.S.C. 1992)

A magistrate judge must issue a report and recommendation for de novo review on a motion

to remand, rather than an order, because a motion to remand is case-dispositive. 

5th Circuit:

Dugas v. Jefferson County, 911 F. Supp. 251 (E.D. Tex. 1995)

A motion to remand is referable to a magistrate judge as a non-case-dispositive motion. 

(Opinion by a magistrate judge.)

December 2013 13 INVENTORY
Vaquillas Ranch Co., Ltd. v. Texaco Exploration & Production, Inc., 844 F. Supp. 1156

(S.D. Tex. 1994)

A motion to remand the case to state court is a non-case-dispositive matter, and the

magistrate judge’s decision is reviewed under the clearly erroneous or contrary to law

standard.

7th Circuit:

Archdiocese of Milwaukee v. Underwiters at Lloyd’s London, 955 F. Supp. 1066 (E.D.

Wis.1997)

The court reviewed a magistrate judge’s order granting a motion to remand under the de

novo standard, but acknowledged that “[g]enerally, the court would review the magistrate

[judge]’s decision only for clear error because a motion to remand is not a dispositive motion

as defined by Fed. R. Civ. P. 72(b).”

8th Circuit:

Schrempp v. Rocky Mountain Holding Co., L.L.C., 2007 WL 570406 (D. Neb. 2007)

In light of the split in court decisions over whether a magistrate judge has authority to rule

on a motion to remand, the magistrate judge entered a report and recommendation on the

matter.

White v. State Farm Mut. Auto. Ins. Co., 153 F.R.D. 639 (D. Neb. 1993)

A district judge reviewed an appeal from the magistrate judge’s order remanding the case to

state court under the clearly erroneous or contrary to law standard of § 636(b)(1)(A). The

opinion included the text of the magistrate judge’s opinion holding that a magistrate judge

has authority to remand as a non-case-dispositive pretrial matter. 

Banbury v. Omnitrition International, Inc., 818 F. Supp. 276 (D. Minn. 1993)

A motion to remand the case to state court is a non-case-dispositive matter that may be

referred to a magistrate judge under § 636(b)(1)(A).

9th Circuit:

MacLeod v. Dalkon Shield Claimants Trust, 886 F. Supp. 16 (D. Or. 1995)

A magistrate judge had authority to enter an order of remand as a non-case-dispositive 

pretrial matter under § 636(b)(1)(A), and the district judge was without jurisdiction to review

it after a certified copy of the remand order had been mailed to the clerk of the state court. 

11th Circuit:

Franklin v. City of Homewood, 2007 WL 1804411 (N.D. Ala. 2007)

A motion to remand is a non-case-dispositive matter and thus requires review under the

“clearly erroneous or contrary to the law” standard.

 

Johnson v. Wyeth, 313 F. Supp. 2d 1272 (N.D. Ala. 2004)

The magistrate judge had the authority under 28 U.S.C. § 636(b)(1)(A) to rule on a motion

to remand as long as an opportunity was provided for any party to request review of the

magistrate judge’s ruling by an Article III judge.

December 2013 14 INVENTORY
4. Motions to Consolidate, Bifurcate, and Sever Trials

3d Circuit:

Miller v. New Jersey Transit Auth. Rail Operations, 160 F.R.D. 37 (D.N.J. 1995)

The magistrate judge may orderseparate trials of claims rather than merely recommend such

a procedure to the district judge. (No discussion of § 636(b)(1)(A). Opinion by a magistrate

judge.)

11th Circuit:

Young v. City of Augusta, Ga., 59 F.3d 1160 (11th Cir. 1995)

The magistrate judge’s denial of a motion to consolidate was reviewed by the court of

appeals for abuse of discretion. 

5. Motions for Jury Trial

 

2d Circuit:

Palmer v. Angelica Healthcare Servs. Group, Inc., 170 F.R.D. 88 (N.D.N.Y. 1997)

The magistrate judge denied a motion to strike a jury demand. (Opinion by a magistrate

judge. No discussion of authority.) 

8th Circuit:

Harrington v. Wilbur, 384 F. Supp. 2d 1321 (S.D. Iowa 2005)

A motion for a jury trial is a non-case-dispositive matter under 28 U.S.C. § 636(b)(1), and

the magistrate judge’s order ruling on the motion is subject to a “clearly erroneous or

contrary to law” standard of review. 

6. Motions to Intervene

Courts disagree over whether orders on motions to intervene are dispositive of a claim or defense

before the court. See Section 5, infra, for additional opinions on this issue.

2d Circuit:

United States v. Certain Real Property, 751 F. Supp. 1060 (E.D.N.Y. 1989)

A motion to intervene is not dispositive of a claim or defense of a party under Fed. R. Civ.

P. 72 and can be referred to a magistrate judge under § 636(b)(1)(A). 

3d Circuit:

United States v. W.R. Grace & Co. - Conn., 185 F.R.D. 184 (D.N.J. 1999)

A magistrate judge may hear and adjudicate a motion to intervene as a non-case-dispositive

pretrial motion, without the consent of the parties.

5th Circuit:

WFK & Assoc., L.L.C. v. Tangipahoa Parish, 2007 WL 1537633 (E.D. La. 2007)

A magistrate judge’s denial of a motion to intervene was reviewed as a non-case-dispositive

matter.

December 2013 15 INVENTORY
Mississippi Power & Light Co. v. United Gas Pipe Line Co., 621 F. Supp. 718 (S.D. Miss.

1985)

The denial of a motion to intervene is equivalent to an involuntary dismissal, even though

the original suit remains for adjudication. A magistrate judge therefore had no authority to

render a final decision on the motion.

9th Circuit:

United States v. Brooks, 163 F.R.D. 601 (D. Or. 1995)

A magistrate judge’s ruling on a motion to intervene is a non-case-dispositive pretrial ruling

reviewable under the clearly erroneous or contrary to law standard.

10th Circuit:

Day v. Sebelius, 227 F.R.D. 668 (D. Kan. 2005)

An order granting leave to intervene is a non-case-dispositive matter under 28 U.S.C. §

636(b)(1). (Opinion by a magistrate judge.)

D.C. Circuit:

Perles v. Kagy, 394 F. Supp. 2d 68 (D.D.C. 2005)

A district judge could refer a motion to intervene without the parties’ consent and would

review objections under a “clearly erroneous” standard. (Opinion by a magistrate judge.)

7. Motions to Strike Claims

1st Circuit:

Singh v. Superintending School Committee of the City of Portland, 593 F. Supp. 1315 (D.

Me. 1984)

A motion to strike claims for punitive damages was properly decided by a magistrate judge

under § 636(b)(1)(A) since it was not one of the pretrial motions excepted from referral to

magistrate judges.

8. Discovery Motions and Orders

In most districts, discoverymotions are referred routinely to magistrate judges. Matters concerning

discovery are ordinarily considered to be non-case-dispositive pretrial matters subject to the clearly

erroneous or contrary to law standard of review, though some districts have found certain motions

regarding expert testimony to be case-dispositive. 

1st Circuit:

Sunview Condo. Assoc. v. Flexel Int’l, Ltd., 116 F.3d 962 (1st Cir. 1997)

A magistrate judge’s order denying a motion to compel jurisdictional discovery is non-casedispositive and self-operating. An aggrieved party must file timely objections in the district

court to receive subsequent review in a court of appeals.

Public Service Co. of N.H. v. Portland Natural Gas, 218 F.R.D. 361 (D.N.H. 2003)

The district judge reviewed a magistrate judge’s order granting a motion to compel discovery

under a “clearly erroneous” standard.

December 2013 16 INVENTORY
Holmes Products Corp. v. Dana Lighting, Inc., 926 F. Supp. 264 (D. Mass. 1996)

A magistrate judge’s discovery order may be reviewed only under the clearly erroneous or

contrary to law standard, and the district judge is not permitted to receive additional

evidence. 

In re San Juan Dupont Plaza Hotel Fire Litigation, 117 F.R.D. 30 (D.P.R. 1987)

A magistrate judge is authorized under § 636(b)(1)(A) to order compliance with a subpoena

duces tecum issued in another district during multi-district litigation. (Opinion by a

magistrate judge.)

2d Circuit:

Thomas Hoar Inc., v. Sara Lee Corp., 900 F.2d 522 (2d Cir.), cert. denied, 498 U.S. 846

(1990)

Discovery matters, including monetary sanctions under Rule 37 for failure to comply with

discovery orders, are generally non-case-dispositive matters subject to the clearly erroneous

or contrary to law standard of review.

Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 282 F.R.D. 76

(S.D.N.Y. 2012)

A district judge held that a magistrate judge did not clearly err or act contrary to law in

denying the plaintiffs’ request to submit rebuttal expert reports after the date for completing

discovery established in the magistrate judge’s original scheduling order had passed. [See

Information Memorandum No. 325 for a more detailed summary of this case.]

Highland Capital Mgmt. v. Schneider, 551 F. Supp. 2d 173 (S.D.N.Y. 2008)

The district court reviewed the magistrate judge’s opinion and order on a motion to exclude

proposed expert testimony under the “clearly erroneous or contrary to law” standard.

In re Rivastigimine Patent Litigation, 239 F.R.D. 351 (S.D.N.Y. 2006)

The “clearly erroneous or contrary to law” standard set forth in 28 U.S.C. § 636(b)(1)(A)

governs a trial court’s review of a magistrate judge’s order regarding a discovery dispute.

Patton v. Thomson Corp., 364 F. Supp. 2d 263 (E.D.N.Y. 2005)

A magistrate judge had authority to order a defendant to provide names, addresses and other

identifying information about putative class members in a potential class action under the

Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. A discovery motion was a noncase-dispositive matter, even though the issue of whether the class was properly maintained

had not yet been decided. (Opinion by a magistrate judge.)

In re Natural Gas Commodities Litigation, 232 F.R.D. 208 (S.D.N.Y. 2005)

In reviewing a magistrate judge’s order denying a motion to compel, the district judge

applied the “clearly erroneous or contrary to law” standard under Fed. R. Civ. P. 72.

E.E.O.C. v. First Wireless Group, Inc., 225 F.R.D. 404 (E.D.N.Y. 2004)

A magistrate judge’s authority in a discovery dispute in the EEOC’s employment

discrimination case against an employer included the authority to grant a protective order

December 2013 17 INVENTORY
against an employer’s discoveryrequest for information about the charging parties’ allegedly

illegal immigration status. 

3d Circuit:

Haines v. Liggett Group, Inc., 975 F.2d 81 (3d Cir. 1992)

When reviewing a magistrate judge’s non-case-dispositive discovery order, a district judge

is not permitted to consider additional evidence and is bound by the clearly erroneous

standard when reviewing questions of fact. 

New York v. United States Metals Refining Co., 771 F.2d 796 (3d Cir. 1985)

A magistrate judge is authorized to issue a protective order under Fed. R. Civ. P. 26 to

prevent a party from releasing discovery information to the public. A temporary discovery

order does not reach the merits of the case.

Lithuanian Commerce Corp., Ltd. v. Sara Lee Hosiery, 179 F.R.D. 450 (D.N.J. 1998)

A magistrate judge’s evidentiary determinations regarding expert testimony are reviewed as

non-case-dispositive orders under 28 U.S.C. § 636(b)(1)(A), even where theymayultimately

affect the outcome of a claim or defense.

Scott Paper Co. v. United States, 943 F. Supp. 501 (E.D. Pa. 1996)

A district judgemay overrule a magistrate judge’s non-case-dispositive discoveryorder only

if the decision is clearly erroneous or contrary to law or if the magistrate judge abused his

discretion. 

4th Circuit:

FDIC v. United States, 527 F. Supp. 942 (S.D. W. Va. 1981)

A magistrate judge’s decision denying discovery on the basis of attorney-client privilege is

a non-case-dispositive matter.

5th Circuit:

In re Terra International, Inc. 134 F.3d 302 (5th Cir. 1998)

The court of appeals issued a writ of mandamus to compel the district court to vacate its

order affirming the magistrate judge’s protective order sequestering fact witnesses prior to

their depositions and barring witnesses from attending the depositions of other witnesses. 

The district judge abused his discretion in affirming the magistrate judge’s order.

Newton v. Roche Laboratories, Inc., 243 F. Supp. 2d 672 (W.D. Tex. 2002)

A magistrate judge issued an order granting motions to exclude expert testimony. (No

discussion of magistrate judge authority.)

Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 204 (N.D. Tex. 1996)

A district judge affirmed the magistrate judge’s order granting a motion for mental

examination in a sexual harassment action, applying the clearly erroneous standard to the

magistrate judge’s fact-finding, reviewing conclusions of law de novo, and invoking the

abuse of discretion standard to review “that vast area of choice that remains to the magistrate

judge who has properly applied the law to fact findings that are not clearly erroneous.”

December 2013 18 INVENTORY
6th Circuit:

Downs v. Perstorp Components, Inc., 126 F. Supp. 2d 1090 (E.D. Tenn. 1999)

A magistrate judge issued an order granting a motion to exclude expert testimony. (No

discussion of magistrate judge authority.)

Mathers v. Bricklayers and Allied Craftsmen, 1991 WL 334858 (W.D. Mich. 1991) 

A magistrate judge’s denial of a motion to compel discovery based on attorney-client

privilege is a non-case-dispositive matter.

Pauley v. United Operating Co., 606 F. Supp. 520 (E.D. Mich. 1985)

An order requiring a defendant to appear at a pretrial discovery hearing is within the

magistrate judge’s authority under § 636(b)(1)(A).

7th Circuit:

Westefer v. Snyder, 472 F. Supp. 2d 1034 (S.D. Ill. 2006)

In general, discovery orders are non-case-dispositive matters within the meaning of Fed. R.

Civ. P. 72.

Vann v. Lone Star Steakhouse & Saloon of Springfield, Inc., 967 F. Supp. 346 (C.D. Ill.

1997)

A motion to compel disclosure of a psychotherapist’s records was a non-case-dispositive

motion within the magistrate judge’s authority and subject to review under a clearly

erroneous or contrary to law standard.

8th Circuit:

Bialas v. Greyhound Lines, Inc., 59 F.3d 759 (8th Cir. 1995)

A magistrate judge’s grant of a motion to quash discovery requests is reviewable by a district

judge under the “clearly erroneous or contrary to law” standard.

Benedict v. Zimmer, Inc., 232 F.R.D. 305 (N.D. Iowa 2005)

A motion for leave to provide an expert’s report is a non-case-dispositive matter, even

though the court’s ruling on the motion obviously affects the court’s order on a pending

summary judgment motion.

9th Circuit:

Powers v. Eichen, 961 F. Supp. 233 (S.D. Cal. 1997)

A magistrate judge stayed discovery pending the determination of a motion for

reconsideration of a ruling on a motion to dismiss in a securities fraud action. (Opinion by

a magistrate judge.)

Piper v. Harnischfeger Corp., 170 F.R.D. 173 (D. Nev. 1997)

A magistrate judge ordered that a treating physician identified as an expert who was expected

to testify at trial did not have to provide the expert report required under Fed. R. Civ. P. 26. 

(Opinion by a magistrate judge.)

December 2013 19 INVENTORY
Ainsworth v. Vasquez, 759 F. Supp. 1467 (E.D. Cal. 1991)

In a death penalty habeas corpus case, a magistrate judge may exercise the inherent powers

ofthe court to issue non-case-dispositive orders setting hearings under Neuschafer v. Whitley,

860 F.2d 1470 (9th Cir. 1988), to determine the existence of all exhausted and unexhausted

claims.

10th Circuit:

Allen v. Sybase, 468 F.3d 642 (10th Cir. 2006)

A motion to strike hearsay statements from an affidavit was referred to a magistrate judge

as a non-case-dispositive matter.

Claytor v. Computer Assoc. Int’l, 211 F.R.D. 665 (D. Kan. 2003)

A magistrate judge’s order on a motion to extend the discovery period will be overturned

only if clearly erroneous or contrary to law.

Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491 (D. Kan. 1997)

A district judge reviewed a magistrate judge’s order on a motion to compel under the clearly

erroneous or contrary to law standard.

Bryant v. Hilst, 136 F.R.D. 487 (D. Kan. 1991)

A magistrate judge’s order denying a motion for a protective order preventing ex parte

communications by counsel with opposing party’s witnesses is reviewed as a

non-case-dispositive matter.

11th Circuit:

Featherston v. Metropolitan Life Insurance Co., 223 F.R.D. 647 (N.D. Fla. 2004)

A magistrate judge’s ruling granting a protective order precluding the deposition of two

witnesses was subject to review under the clearly erroneous standard.

9. Motions to Quash Subpoena

6th Circuit:

Tri-Star Airlines, Inc. v. Willis Careen Corp. of Los Angeles, 75 F. Supp. 2d 835 (W.D.

Tenn. 1999)

A magistrate judge had the authorityto deny the United States government’s motion to quash

a civil subpoena seeking access to documents seized by the FBI during an on-going criminal

investigation.

8th Circuit:

United States v. Blade, 336 F.3d 754 (8th Cir. 2003)

The magistrate judge acted within his discretionary authority in refusing to issue numerous

subpoenas requested by the defendant under Fed. R. Crim. P. 17. 

Heuser v. Johnson, 189 F. Supp. 2d 1250 (D.N.M. 2001)

A magistrate judge’s order denying a motion to enforce a subpoena was not case-dispositive;

its only effect was to permit an individual to avoid having to be deposed. Such an order was

December 2013 20 INVENTORY
clearly non-case-dispositive and was therefore subject to the deferential standard of review

set forth in Fed. R. Civ. P. 72. 

9th Circuit:

Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010)

In granting the plaintiff’s motion for reconsideration of the magistrate judge’s order denying

a plaintiff’s motion to quash the defendants’ third party subpoenas in a copyright action, the

district judge treated the motion to quash the subpoenas as a non-case-dispositive matter

under 28 U.S.C. § 636(b)(1)(A) applying the clearly erroneous standard when reviewing the

magistrate judge’s findings of fact and conducting an independent review of purely legal

determinations under the contrary to law standard. [See Information Memorandum No. 318

for a more detailed summary of this case.] 

10. Letters Rogatory [28 U.S.C. § 1782]

Courts disagree over whether letters rogatorymatters are dispositive of a claim or defense before the

court. See Section 5, infra, for additional opinions on this issue.

3d Circuit:

In re Kasper-Ansermet, 132 F.R.D. 622 (D.N.J. 1990)

A magistrate judge’s order granting a motion to quash deposition subpoenas issued under 28

U.S.C. § 1782 was affirmed as being neither clearly erroneous nor contrary to law.

6th Circuit: 

In re Letter of Request From Local Court of Pforzheim, 130 F.R.D. 363 (W.D. Mich. 1989)

Letters rogatory could be assigned to a magistrate judge appointed as “commissioner” for

purposes of rendering judicial assistance under 28 U.S.C. § 1782(a). A magistrate judge has

discretion under § 636(b) to grant or deny a requested order for a blood sample. (Opinion

by a magistrate judge.)

9th Circuit:

Four Pillars Enterprises Co., Ltd. v. Avery Dennison Corp., 308 F.3d 1075 (9th Cir. 2002)

A Taiwanese company’s application to the Central District of California for assistance in

conducting discovery in a foreign proceeding under 28 U.S.C. § 1782 was referred to a

magistrate judge as a non-case-dispositive discovery matter, and the magistrate judge’s

rulings were reviewed under the clearly erroneous standard.

In re Request for Judicial Assistance from Seoul Dist. Criminal Court, Seoul, Korea, 428 F.

Supp. 109 (N.D. Cal), aff’d, 555 F.2d 720 (9th Cir. 1977)

Only a district judge may order judicial assistance under 28 U.S.C. § 1782. A written order

of reference appointing a magistrate judge as a commissioner in this matter limited the

magistrate judge to administrative functions only, and the magistrate judge had no authority

to deny the request for assistance. The matter was therefore treated as a report and

recommendation under § 636(b)(1)(B).

December 2013 21 INVENTORY
11th Circuit:

In re Commissioner’s Subpoenas, 325 F.3d 1287 (11th Cir. 2003)

A request for assistance, or letter rogatory, from Canadian law enforcement authorities

seeking subpoenas under 28 U.S.C. § 1782 to interview individuals residing in Florida was

referred to a magistrate judge as a non-case-dispositive matter, and the district court properly

reviewed the magistrate judge’s ruling under the clearly erroneous standard.

D.C. Circuit:

Norex Petroleum Ltd v. Chubb Insurance Group of Canada, 384 F. Supp. 2d 45 (D.D.C.

2005)

A Canadian company’s petition under 28 U.S.C. § 1782 for assistance in conducting

discoveryin a foreign proceedingwas referred to a magistrate judge as a non-case-dispositive

discoverymatter, and the magistrate judge’s ruling was reviewed under the clearly erroneous

standard.

11. Sanctions

Courts disagree over whether imposition of sanctions is dispositive of a claim or defense before the

court. See Section 5, infra, for additional opinions on this issue.

1st Circuit:

Sheppard v. River Valley Fitness One, L.P., 428 F.3d 1 (1st Cir. 2005)

A magistrate judge had authority to take into account an attorney’s misconduct involving

another related case when ordering sanctions against the attorney.

Estates of Ungar and Ungar v. Palestinian Authority, 325 F. Supp. 2d 15 (D.R.I. 2004),

aff’d, 402 F.3d 274 (1st Cir.), cert. denied, 546 U.S. 1034 (2005)

A magistrate judge’s determination to award attorneys’ fees as a discoverysanction pursuant

to Fed. R. Civ. P. 37 is a non-case-dispositive matter, and the district court reviews the

magistrate judge’s order under the clearly erroneous standard.

2d Circuit:

Kiobel v. Millson, 592 F.3d 78 (2d Cir.2010)

Deciding the appeal on other grounds, three judges on a panel of the Second Circuit issued

separate concurring opinions setting forth disparate views on whether a magistrate judge has

authority to order sanctions under Fed. R. Civ. P. 11. One judge issued an opinion

concluding that magistrate judges do not have authority under the Federal Magistrates Act, 

28 U.S.C. § 636, to issue a dispositive sanction order under Rule 11, while another judge

issued an opinion concluding that magistrate judges do have this authority under the Act. 

A third judge declined to endorse either view in light of the statute’s ambiguity. [See

Information Memorandum No. 315 for a more detailed summary of this case.]

December 2013 22 INVENTORY
Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522 (2d Cir.), cert. denied, 498 U.S. 846

(1990)

The imposition of monetary sanctions under Fed. R. Civ. P. 37 is usually considered a

non-case-dispositive matter. Some Rule 37 evidentiary sanctions may, however, be

considered case-dispositive.

Carmona v. Wright, 233 F.R.D. 270 (N.D.N.Y. 2006)

Sanctions for discovery violations are generally considered non-case-dispositive matters

unless the sanction employed disposes of a claim; e.g., striking pleadings with prejudice, or

dismissing the case.

Arons v. Lalime, 167 F.R.D. 364 (W.D.N.Y. 1996)

A magistrate judge ordered monetary sanctions pursuant to Fed. R. Civ. P. 16 and Fed. R.

Civ. P. 37. (Opinion by a magistrate judge.)

Weeks Stevedoring Co., Inc., v. Raymond Int’l Builders, Inc., 174 F.R.D. 301 (S.D.N.Y.

1997)

A magistrate judge’s award of Rule 11 sanctions is reviewable under the clearly erroneous

or contrary to law standard of review unless the sanction itself can be considered dispositive

of a claim.

Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 594 (W.D.N.Y. 1996)

Magistrate judges can order discovery sanctions that are non-case-dispositive, including, in

this copyright infringement case, resolving the issue of access to the copyrighted material,

a component of the test for infringement. (Opinion by a magistrate judge, expressly leaving

the district judge the option of treating it as a report and recommendation.) 

Scotch Game Call Company, Inc. v. Lucky Strike Bait Works, Ltd., 148 F.R.D. 65 (W.D.N.Y.

1993)

A magistrate judge awarded attorneys fees and costs under 28 U.S.C. § 1927 as sanctions for

the bad faith multiplication of proceedings. (Opinion by a magistrate judge.)

3d Circuit:

Toth v. Alice Pearl, Inc., 158 F.R.D. 47 (D.N.J. 1994)

A magistrate judge’s letter opinion imposing Rule 11 sanctions was reviewed as a non-casedispositive matter subject to the clearly erroneous or contrary to law standard of review.

Exxon Corp. v. Halcon Shipping Co., Ltd., 156 F.R.D. 589 (D.N.J. 1994)

A magistrate judge’s order precluding the plaintiff’s expert witness from testifying as a

sanction for violation of a pretrial discovery order was reviewed under the clearly erroneous

or contrary to law standard of review.

December 2013 23 INVENTORY
4th Circuit:

Giganti v. Gen-X Strategies, Inc., 222 F.R.D. 299 (E.D. Va. 2004)

The issue of sanctions under Fed. R. Civ. P. 11 is a non-case-dispositive matter subject to

clearly erroneous review, unless the nature of the sanction imposed, such as dismissal of the

offending claim or defense, is itself dispositive of the claim or defense.

Segal v. L.C. Hohne Contractors, Inc., 303 F. Supp. 2d 790 (S.D. W.Va. 2004)

When a district judge reviews a magistrate judge’s ruling on a motion for sanctions, the

sanction chosen by the magistrate judge, not the sanction sought by the litigant, governs the

standard of review to be applied under Fed. R. Civ. P. 72. In the case at bar, the magistrate

judge’s decision to reject the defendants’ request for the sanction of default judgment was

a non-case-dispositive matter and was reviewed under the clearly erroneous standard. 

Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651 (D. Md. 1997)

A magistrate judge granted a motion to compel and entered an order to show cause why

discovery sanctions should not be imposed for failure to comply with discovery obligations.

(Opinion by a magistrate judge.)

6th Circuit:

Bennett v. General Caster Services of N. Gordon Co., Inc., 976 F.2d 995 (6th Cir. 1992)

A magistrate judge does not have authority under § 636(b)(1)(A) to issue a final order for

sanctions under Fed. R. Civ. P. 11.

Clark Construction Group, Inc. v. City of Memphis, 229 F.R.D. 131 (W.D. Tenn. 2005)

A magistrate judge issued an order for sanctions under Fed. R. Civ. P. 37 against a defendant

for spoliation of evidence and ordered the defendant to pay fees incurred by the plaintiff in

seeking sanctions, but ruled that dismissal of the action as a sanction was not appropriate. 

(Opinion by a magistrate judge.)

Instituform of North America, Inc. v. Midwest Pipeliners, Inc., 139 F.R.D. 622 (S.D. Ohio

1991)

The district court has the inherent power to consider the ethical conduct of attorneys and to

sanction that conduct, including the powerto disqualify an attorney or exclude the testimony

of an attorney regarding conversations between the attorney and employees of the opposing

party. (Opinion by a magistrate judge.)

8th Circuit:

Universal Cooperatives, Inc. v. Tribal Co-op. Marketing Dev. Fed. of India, 45 F.3d 1194

(8th Cir. 1995)

A magistrate judge had authority to impose sanctions when a client with settlement authority

failed to attend a conference.

Temple v. WISAP USA in Texas, 152 F.R.D. 591 (D. Neb. 1993)

Rule 11 sanctions were properly imposed by a magistrate judge under § 636(b)(1)(A)

because “pretrial” was understood to mean “nontrial.” Section 636(b)(3) provided an

alternative source of magistrate judge authority.

December 2013 24 INVENTORY
Jochims v. Isuzu Motors, Ltd., 144 F.R.D. 350 (S.D. Iowa 1992)

A magistrate judge imposed sanctions under Fed. R. Civ. P. 16 for failure to seek a timely

amendment of the pretrial scheduling order and the untimelydesignation of expert witnesses.

(Opinion by a magistrate judge. No discussion of magistrate judge authority.)

9th Circuit:

Simpson v. Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 1996)

A party who fails to file timely objections to the magistrate judge’s discovery sanctions

orders, which are non-case-dispositive, forfeits appellate review.

Grimes v. City and County of San Francisco, 951 F.2d 236 (9th Cir. 1991)

A magistrate judge was authorized under § 636(b)(1)(A) to impose a final order for

prospective monetary sanctions under Fed. R. Civ. P. 37 against a municipal defendant that

had repeatedly failed to comply with the plaintiff’s discovery requests and rulings by the

magistrate judge. The appellate court upheld an $85,000 proscriptive sanction ordered by

the magistrate judge to compel compliance with discovery orders.

Maisonville v. F2 America, Inc., 902 F.2d 746 (9th Cir. 1990), cert. denied sub nom. 

Dombroski v. F2 America, Inc., 498 U.S. 1025 (1991

A magistrate judge had authority to impose Rule 11 sanctions against a party for filing a

frivolous motion for reconsideration of an order denying discovery sanctions.

Smith & Green Corp. v. Trustees of the Const. Industry, 244 F. Supp. 2d 1098 (D. Nev.

2003)

A magistrate judge had authority to decide a motion for attorney’s fees because casedispositive sanctions were not sought.

10th Circuit:

Hutchinson v. Pfeil, 105 F.3d 562 (10th Cir.), cert. denied, 522 U.S. 914 (1997)

The court construed a motion to disqualify counsel as a motion for sanctions within the

magistrate judge’s authority to decide non-case-dispositive matters under § 636(b)(1)(A). 

Discovery sanctions under Fed. R. Civ. P. 37 are also properly determined by a magistrate

judge under § 636(b)(1)(A). 

Gomez v. Martin Marietta Corp., 50 F.3d 1511 (10th Cir. 1995)

A party’s request for a case-dispositive sanction – in this case the entry of a default judgment

– does not determine the scope of the magistrate judge’s authority. If the magistrate judge

does not impose a dispositive sanction, the order falls under Fed. R. Civ. P. 72 rather than

72(b).

Allstate Financial Corp. v. Steel-N-Foam-Docks, Inc., 1995 WL 7448 (D. Kan. 1995)

A magistrate judge granted a motion for sanctions (attorneys fees) under Fed. R. Civ. P. 16

against counsel for failure to comply with scheduling and pretrial orders after the district

judge had accepted the magistrate judge’s report and recommendation for dismissal of the

action for the same violations. (Opinion by a magistrate judge.) 

December 2013 25 INVENTORY
11th Circuit:

San Shiah Enterprise Co., Ltd. v. Pride Shipping Corp., 783 F. Supp. 1334 (S.D. Ala. 1992)

A magistrate judge is authorized to impose Rule 11 sanctions under § 636(b)(1)(A) and Fed.

R. Civ. P. 72.

D.C. Circuit:

Moore v. Napolitano, 723 F. Supp. 2d 167 (D.D.C. 2010)

Magistrate judge had authority to issue final sanctions order against defendant under Fed. R.

Civ. P. 37 that precluded the defendant from offering any legitimate, non-discriminatory

reason to rebut any prima facie case of disparate treatment discriminatory non-promotion of

the individually named plaintiffs in a discrimination class action. [See Information

Memorandum No. 318 for a more detailed summary of this case.] 

Collett v. Socialist Peoples’ Libyan Arab Jamahiriya, 448 F. Supp. 2d 92 (D.D.C. 2006)

A magistrate judge’s decision on a motion for sanctions is entitled to great deference and will

not be disturbed unless found to be clearly erroneous or contrary to law.

12. Motions to Disqualify Counsel

1st Circuit

Ageloff v. Noranda, Inc., 936 F. Supp. 72 (D.R.I. 1996)

A magistrate judge’s order denying a motion for admission pro hac vice and disqualifying

counsel was reversed by the district court for clear error.

3d Circuit:

Mruz v. Caring, Inc., 166 F. Supp. 2d 61 (D.N.J. 2001)

A motion to revoke an attorney’s pro hac vice status is a non-case-dispositive matter under 

§ 636(b)(1)(A) that may be ruled on by a magistrate judge, subject to review by a district

judge under the clearly erroneous or contrary to law standard.

Andrews v. Goodyear Tire & Rubber Co., Inc., 191 F.R.D. 59 (D.N.J. 2000)

Matters concerning the disqualification of counsel and pretrial discovery are invariably

treated as non-case-dispositive pretrial motions by courts in this jurisdiction and elsewhere,

and the district court may only set aside the magistrate judge’s disqualification order if it is

found to be clearly erroneous or contrary to law.

6th Circuit:

Affeldt v. Carr, 628 F. Supp. 1097 (N.D. Ohio 1985)

A motion to disqualify counsel is a non-case-dispositive pretrial matter properly referred to

a magistrate judge under § 636(b)(1)(A). 

December 2013 26 INVENTORY
9th Circuit:

Advanced Manufacturing Technologies, Inc. v. Motorola, Inc., 2002 WL 1446953 (D. Ariz.

2002)

A magistrate judge’s authority to rule on a disqualification motion falls within the “pretrial

duties” delegated to magistrate judges under the Federal Magistrates Act. Because it is a

non-case-dispositive matter, it may be handled by a magistrate judge under 28 U.S.C.

§ 636(b)(1)(A). (Opinion by a magistrate judge.)

Coles v. Arizona Charlie’s, 992 F. Supp. 1214 (D. Nev. 1998)

A district judge applied the “clearly erroneous or contrary to law” standard of review to

affirm the magistrate judge’s order disqualifying the plaintiff’s attorney who had previously

worked for the defense counsel’s law firm.

Asyst Tech., Inc. v. Empak, Inc., 962 F. Supp. 1241 (N.D. Cal. 1997)

A magistrate judge granted a motion to disqualify defense counsel in a patent case in which

two of the defense firm’s partners had participated in obtaining the patents at issue. (Opinion

by a magistrate judge.) 

11th Circuit:

Estate of Jones v. Beverly Health and Rehabilitation Services, Inc., 68 F. Supp. 2d 1304

(N.D. Fla. 1999)

An order disqualifying counsel is a non-case-dispositive matter that may be handled by a

magistrate judge as a pretrial duty under 28 U.S.C. § 636(b)(1)(A). (Opinion by a magistrate

judge.) 

13. Motions for Self-Representation

11th Circuit:

United States v. Schultz, 565 F.3d 1353 (11 Cir. 2009) th

A magistrate judge had authority under 28 U.S.C. § 636(b)(1)(A) to rule on a felony

defendant’s motion to represent himself at trial. [See Information Memorandum No. 313 for

a more detailed summary of this case.]

14. Garcia Hearings

11th Circuit:

United States v. Freixas, 332 F.3d 1314 (11th Cir. 2003)

A magistrate judge had authority to preside over a Garcia hearing in a felony case to

determine whether a conflict of interest existed concerning counsel’s representation of

multiple defendants.

December 2013 27 INVENTORY
15. Sufficiency of Pleas

5th Circuit:

United States v. Rojas, 898 F.2d 40 (5th Cir. 1990)

A magistrate judge may preside over an evidentiary hearing to determine the voluntariness

of a defendant’s guilty plea. Although the court considered the proceeding a

non-case-dispositive pretrial matter referred under § 636(b)(1)(A), in this case the district

judgemaintained authority over the final decision by reviewing the magistrate judge’s report

and recommendation concerning the plea.

16. Motions to Certify Order for Interlocutory Appeal

6th Circuit:

Vitols v. Citizens Banking Co., 984 F.2d 168 (6th Cir. 1993)

A magistrate judge did not have authority under § 636(b)(1) to issue a final order certifying

a district court order for interlocutory appeal under 28 U.S.C. § 1292(b).

17. Grand Jury Proceedings

2d Circuit:

United States v. Diaz, 922 F.2d 998 (2d Cir. 1990), cert. denied, 500 U.S. 925 (1991)

The selection and empanelment of a grand juryis a non-substantive, ministerial task that may

be referred to a magistrate judge under § 636(b)(1)(A). The limitations of the Jury Act, 28

U.S.C. 1861 et seq., are overridden by the Federal Magistrates Act.

In re Grand Jury Subpoena, 118 F.R.D. 558 (D. Vt. 1987)

A motion to quash a grand jury subpoena was referred to a magistrate judge under 

§ 636(b)(1)(A).

9th Circuit:

In re Search of 6783 East Soaring Eagle Way, 109 F. Supp. 2d 1162 (D. Ariz. 2000)

Magistrate judges may orderthe disclosure of grand jury testimony pursuant to their “pretrial

matter” authority under 28 U.S.C. § 636(b)(1)(A) and their “additional duties” authority

under § 636(b)(3).

18. Subpoenas Duces Tecum [Fed. R. Crim. P. 17]

1st Circuit:

United States v. Kloepper, 725 F. Supp. 638 (D. Mass. 1989)

A magistrate judge may exercise the court’s inherent authority and rely on Fed. R. Crim. P.

17 to require an indicted defendant to provide handwriting samples, palmprints and

fingerprints. Such an order should not be set aside unless an implicit finding of probable

cause to order production of the evidence is clearly erroneous.

December 2013 28 INVENTORY
2d Circuit:

United States v. Florack, 838 F. Supp. 77 (W.D.N.Y. 1993)

The district judge reversed as contrary to law the magistrate judge’s denial of defendant’s ex

parte motion to issue a subpoena duces tecum under Fed. R. Crim. P. 17, which had been

referred to the magistrate judge under § 636(b)(1)(A).

5th Circuit:

Hodge v. Prince, 730 F. Supp. 747 (N.D. Tex. 1990), aff’d, 923 F.2d 853 (5th Cir. 1991)

A prisoner’s motion for issuance of a subpoena duces tecum without prepayment of witness

fees is a non-case-dispositive matter properly decided by the magistrate judge under 28

U.S.C. § 636(b)(1)(A).

19. Motions to Transfer Venue

Courts disagree over whether orders transferring venue are dispositive of a claim or defense before

the court. See Section 5, infra, for additional opinions on this issue.

2d Circuit:

Shenker v. Murasky, 1996 WL 650974 (E.D.N.Y. 1996)

A magistrate judge’s order transferring venue is a non-case-dispositive matter subject to the

clearly erroneous or contrary to law standard of review.

3d Circuit:

Berg v. Aetna Freight Lines, 2008 WL 2779294 (W.D. Pa. 2008)

A motion to transfer venue pursuant to 28 U.S.C. § 1404(a) involves a non-case-dispositive

pretrial matter that a magistrate judge may determine pursuant to 28 U.S.C. § 636(b)(1)(A). 

(Opinion by a magistrate judge.) 

Market Transition Facility of New Jersey v. Twena, 941 F. Supp. 462 (D.N.J. 1996)

A magistrate judge denied a motion for transfer based on improper venue. (Opinion by a

magistrate judge, with no discussion of authority.) 

6th Circuit:

Siteworks Solutions v. Oracle Corp., 2008 WL 4415075 (W.D. Tenn. 2008)

A motion to transfer under 28 U.S.C. § 1404(a) is a non-case-dispositive pretrial matter that

a magistrate judge may determine pursuant to 28 U.S.C. § 636(b)(1)(A). (Opinion by a

magistrate judge.)

9th Circuit:

Paoa v. Marati, 2007 WL 4563938 (D. Haw. 2007)

A magistrate judge’s order transferring venue may be rejected by the district judge only if it

is clearly erroneous or contrary to law.

December 2013 29 INVENTORY
11th Circuit:

Silong v. United States, 2006 WL 948048 (M.D. Fla. 2006)

A motion to transfer venue is a non-case-dispositive pretrial matter that a magistrate judge

may determine pursuant to 28 U.S.C. § 636(b)(1)(A). (Opinion by a magistrate judge.)

20. Conditional Class Certification

1st Circuit:

Poreda v. Boise Cascade, LLC, 532 F. Supp. 2d 234 (D. Mass. 2008)

Although magistrate judges usually cannot directly authorize final class certifications, they

can resolve requests involving preliminary determinations that are not case-dispositive.

2d Circuit:

Barrus v. Dick’s Sporting Goods, 465 F. Supp. 2d 224 (W.D.N.Y. 2006)

Although magistrate judges do not have jurisdiction to authorize final certification of a class,

they have jurisdiction over motions seeking conditional class certification because those are

only preliminary determinations and are not case-dispositive.

Patton v. Thomson Corp., 364 F. Supp. 2d 263 (E.D.N.Y. 2005)

A magistrate judge may decide a motion for leave to circulate a notice of pendency in a case

brought under the Fair Labor Standards Act, since the only decision the motion presents is

whether the members of the proposed class are similarly situated enough to permit discovery

of their names and addresses and sending of a notice alerting them to their right to opt in to

the class.

21. Settlement Conferences

7th Circuit:

G. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir. 1989) (en banc)

A magistrate judge is authorized to issue an order under Fed. R. Civ. P. 16 requiring the

parties with authority to settle the case to attend a pretrial conference.

8th Circuit:

Scott v. United States, 552 F. Supp. 2d 917 (D. Minn. 2008)

The district judge upheld, as neither clearly erroneous nor contrary to law, a magistrate

judge’s order compelling the personal telephonic participation of an Assistant Attorney

General at a settlement conference to be conducted by the magistrate judge.

22. Competency to Stand Trial

7th Circuit:

United States v. Kasim, 2008 WL 4822291 (N.D. Ind. 2008)

Orders of competency to stand trial in criminal cases are non-case-dispositive. (Opinion by

a magistrate judge.)

December 2013 30 INVENTORY
23. Stay of Proceedings

3d Circuit:

Delta Frangible Ammunition, LLC v. Sinterfire, 2008 WL 4540394 (W.D. Pa. 2008)

A request for a stay of proceedings is a non-case-dispositive matter. 

24. Appointment of Receiver

2d Circuit:

Fleet Development Ventures, LLC v. Brisker, 2006 WL 2772686 (D. Conn. 2006)

Unlike injunctive relief, the appointment of a temporary receiver under state law is not

dispositive of the rights and obligations of the parties. (Opinion by a magistrate judge.)

7th Circuit:

JP Morgan Chase Bank v. Heritage Nursing Care, Inc., 2007 WL 2608827 (N.D. Ill. 2007)

Appointment of a receiver whose duties would be monitoring the financial activities of the

defendants and reporting to the court would not be dispositive of any claim or defense of any

party. (Opinion by a magistrate judge.)

25. Motions Concerning Arbitration

1st Circuit:

Powershare, Inc. v. Syntel, Inc, 597 F.3d 10 (1 Cir. 2010) st

A magistrate judge had authority to rule on a motion to stay litigation pending arbitration as

a non-case-dispositive motion under 28 U.S.C. § 636(b)(1), and that the magistrate judge’s

order was subject to the “clearly erroneous or contrary to law” standard of review by the

district judge. [See Information Memorandum No. 316 for a more detailed summary of this

case.]

10th Circuit:

Vernon v. Qwest Communications International, Inc, 857 F. Supp. 2d 1135 (D. Colo. 2012)

A magistrate judge ruled that a motion to compel arbitration was a non-case-dispositive

matter under 28 U.S.C. § 636(b)(1)(A), and therefore the magistrate judge could issue a final

order ruling on the motion. [See Information Memorandum No. 323 for a more detailed

summary of this case.]

26. Miscellaneous Pretrial Matters

3d Circuit:

Doe v. Hartford Life & Accident Insurance Co., 237 F.R.D. 545 (D.N.J. 2006)

On appeal, the district judge considered the magistrate judge’s ruling on a motion to proceed

with the case anonymouslyas a non-case-dispositive matter, reviewing the magistrate judge’s

factual findings for clear error and the magistrate judge’s legal conclusions under the

contrary to law standard.

December 2013 31 INVENTORY
6th Circuit:

Stanko v. Story, 928 F.2d 1133 (6th Cir. 1991) (Table disposition -- text available on

Westlaw)

A magistrate judge is empowered by § 636(b)(1)(A) to make findings regarding exhaustion

of remedies without an evidentiary hearing in a habeas corpus case under 28 U.S.C. § 2241.

Nabkey v. Hoffius, 827 F. Supp. 450 (W.D. Mich. 1993), aff’d, 79 F.3d 1148 (6th Cir. 1996)

A contempt sanction imposed by a district judge on a vexatious pro se litigant included a

requirement that any subsequent paper presented for filing be reviewed and approved by a

magistrate judge before being filed. 

7th Circuit:

United States v. Scott, 19 F.3d 1238 (7th Cir.), cert. denied, 513 U.S. 857 (1994)

A magistrate judge’s decision to reopen a suppression hearing is reviewable under the clearly

erroneous standard of § 636(b)(1)(A). 

9th Circuit:

McKeever v. Block, 932 F.2d 795 (9th Cir. 1991)

A magistrate judge is authorized to dismiss a complaint with leave to amend under

§ 636(b)(1)(A). 

11th Circuit:

Young v. City of Augusta, Ga., 59 F.3d 1160 (11th Cir. 1995)

District judge properly referred a motion for hearing to present oral testimony in connection

with a motion for summary judgment to a magistrate judge as a non-case-dispositive motion

under § 636(b)(1)(A).

C. Postjudgment Duties

Although § 636(b)(1)(A)states that magistrate judges may be designated to “hear and determine any

pretrial matter,” courts sometimes utilize this provision to refer postjudgment duties to magistrate

judges. Courts are divided on whether or not the use of the term “pretrial matter” in § 636(b)(1)(A)

permits a court to refer postjudgment matters to magistrate judges under the provision. The referral

of postjudgment matters to magistrate judges also arises under § 636(b)(1)(B) and § 636(b)(3). See

also Sections 5 and 7, infra.

1. Sanctions

5th Circuit:

Merritt v. Int’l Brotherhood of Boilermakers, 649 F.2d 1013 (5th Cir. 1981)

The fact that a hearing under Fed. R. Civ. P. 37 on the issue of litigation expenses, including

attorneys’ fees, was not conducted by the magistrate judge until after the suit was dismissed

did not affect the validity of the magistrate judge’s order.

December 2013 32 INVENTORY
8th Circuit:

Temple v. WISAP USA in Texas, 152 F.R.D. 591 (D. Neb. 1993)

A magistrate judge could rule on a post-trial motion for sanctions under Fed. R. Civ. P. 11

since it was unconnected to the issues litigated at trial. 

10th Circuit:

Bergeson v. Dilworth, 749 F. Supp. 1555 (D. Kan. 1990)

The term “pretrial” is not defined with respect to the time of trial, but rather as a matter that

is unconnected to the issues litigated at trial. A Fed. R. Civ. P. 11 motion for sanctions

against an attorney is a collateral matter and can properly be determined after trial and while

the judgment is on appeal.

2. Discovery Orders

2d Circuit:

Denny v. Ford Motor Co., 146 F.R.D. 52 (N.D.N.Y. 1993)

The referral to a magistrate judge of a motion for post-judgment discovery (in this case, the

trial judge’s deposition) was proper. Although the reference was made without specifying

the source of authority relied upon, the reviewing court held that the only possible source of

authority was § 636(b)(3).

5th Circuit:

Merritt v. International Brotherhood of Boilermakers, 649 F.2d 1013 (5th Cir. 1981)

A magistrate judge had authority to impose Fed. R. Civ. P. 37 discovery sanctions after entry

of judgment since he had expressly reserved a ruling on sanctions after the pretrial hearing.

D.C. Circuit:

Weil v. Markowitz, 108 F.R.D. 113 (D.D.C. 1985)

A magistrate judge had authority to issue a post-judgment ordermodifying a protective order

involving a non-party witness. (Opinion by a magistrate judge.)

3. Appointment of Receiver

6th Circuit:

Bache Halsey Stuart Shields, Inc. v. Killop, 589 F. Supp. 390 (E.D. Mich. 1984)

Section 636(b)(1)(A) only prohibits the magistrate judge from issuing coercive orders

compelling or prohibiting the participants’ conduct and establishing rights and obligations

of the parties. A magistrate judge is authorized to preside over post-judgment collection

proceedings, including appointment of a receiver, under either § 636(b)(1)(A) or § 636(b)(3). 

D. Other Duties

Magistrate judges currently perform a variety of duties analogous to non-case-dispositive matters

for district courts. These duties are not described in the Federal Magistrates Act, and any statutes

authorizing the duties do not specify the involvement of magistrate judges. The authority of

magistrate judges to perform these duties may not have been addressed specifically in case law, but

December 2013 33 INVENTORY
it is assumed by the courts where magistrate judges now perform such duties to be derived from the

general authority of the Federal Magistrates Act and of the district court itself. This list should not

be considered all-encompassing.

The Judicial Services Office recognizes that the following duties are being referred to magistrate

judges in various districts around the country. Such references are often made under a local rule. 

The duties are listed to suggest how different courts have utilized magistrate judges over the last

forty years. 

@ Felony Pretrial Conferences (Fed. R. Crim. P. 17.1)

@ Felony Omnibus Hearings 

@ Civil Pretrial Conferences (Fed. R. Civ. P. 16(b))

@ Calendar Calls

@ Status Conferences

@ Writs of Habeas Corpus Ad Testificandum and Ad Prosequendum

@ Final Pretrial Conferences (Fed. R. Civ. P. 16(d))

@ Waivers of Indictment

@ Determination of Costs of Investigation and Prosecution (21 U.S.C. § 844)

@ Appointment of Persons to Serve Process (Fed. R. Civ. P. 4(c)(3))

December 2013 34 INVENTORY
§ 5. CASE-DISPOSITIVE MATTERS UNDER 28 U.S.C. § 636(b)(1)(B)

A. In General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Authority of Magistrate Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2. Procedural Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

3. District Court’s Supervisory Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

4. Time to File Objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

5. Form of Objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

6. De Novo Determination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

7. District Judge Authority to Overrule a Magistrate Judge’s Credibility

Finding in a Report and Recommendation Without Conducting a 

De Novo Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

8. Appellate Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Excepted Motions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. Motions for Injunctive Relief.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2. Motions for Summary Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

3. Motions to Dismiss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

4. Motions to Suppress Evidence in a Criminal Case. . . . . . . . . . . . . . . . . . 16

5. Class Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. Prisoner Litigation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

1. Applications for Posttrial Relief (Habeas Corpus) . . . . . . . . . . . . . . . . . . 17

2. Petitions Challenging Conditions of Confinement. . . . . . . . . . . . . . . . . . 19

3. Other Prisoner Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

4. Appeals in Prisoner Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

D. Analogous Matters.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1. Motions to Proceed In Forma Pauperis (28 U.S.C. § 1915). . . . . . . . . . . 22

2. Mental Competency Proceedings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

3. Social Security Cases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

4. Enforcement of IRS Summonses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

5. Letters Rogatory (28 U.S.C. § 1782). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

6. Pretrial Matters in Other Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

7. Motions to Transfer Juveniles to Adult Prosecution. . . . . . . . . . . . . . . . . 27

8. Motions to Transfer Venue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

9. Motions for Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

10. Motions Relating to Default Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . 31

11. Motions to Intervene. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

12. Motions to Remand .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

13. Attorney’s Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

14. Motions to Enforce Settlement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

15. Stays of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

16. Postjudgment Motions for Contempt.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

17. Equitable Allocation Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

18. Petition Under the Hague Convention on the Civil Aspects of 

International Child Abduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

19. Expert Testimony.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
20. Motions for Leave to Amend.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

21. Motions for Leave to File Reply Out of Time. . . . . . . . . . . . . . . . . . . . . . 38

22. Motions Under the Freedom of Information Act (FOIA). . . . . . . . . . . . . 38

E. Other Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
§ 5. CASE-DISPOSITIVE MATTERS UNDER 28 U.S.C. § 636(b)(1)(B)

Section 636(b)(1)(B) states as follows:

[A] judge may also designate a magistrate [judge] to conduct hearings, including

evidentiary hearings, and to submit to a judge of the court proposed findings of fact

and recommendations for the disposition, by a judge of the court, of any motion

excepted in subparagraph (A), of applications for posttrial relief made by individuals

convicted of criminal offenses and of prisoner petitions challenging conditions of

confinement.

The Federal Magistrates Act thus provides that magistrate judges may be designated to preside over

proceedings in various matters that dispose of cases or defenses before the court. The ultimate

adjudicatory power over case-dispositive motions, habeas corpus petitions, and other prisoner

petitions, however, is exercised by a district judge unless the parties consent to disposition by the

magistrate judge.

A. In General

1. Authority of Magistrate Judge

2d Circuit:

Jean-Laurent v. C.O. Wilkerson, 461 Fed. Appx. 18 (2d Cir. 2012)

A magistrate judge exceeded his authority under 28 U.S.C. § 636(b)(1)(A) by issuing a final

order denying a pro se prisoner’s motion to amend his complaint to include any state law

claims, which had previously survived the defendant’s motion to dismiss. [See Information

Memorandum No. 323 for a more detailed summary of this case.]

Savoie v. Merchants Bank, 84 F.3d 52 (2d Cir. 1996)

Subsequent to a magistrate judge’s recommendation that funds be set aside for payment of

the plaintiff’s attorneys fees, but before the district judge had adopted the recommendation,

the defendant disbursed the funds. The appeals court affirmed the district court’s order to

restore the status quo ante by escrowing the funds, noting that “it has long been clear that

there are circumstances in which parties ignore recommendations of the magistrate judge at

their peril.” 

Katz v. Molic, 128 F.R.D. 35 (S.D.N.Y. 1989)

A general pretrial order referring matters to the magistrate judge did not enable the

magistrate judge to consider case-dispositive motions without a specific order of reference

under § 636(b)(1)(B).

December 2013 3 INVENTORY
Langley v. Coughlin, 715 F. Supp. 522 (S.D.N.Y. 1989)

A magistrate judge’s report recommending denial of a summary judgment motion did not

exceed an order of reference authorizing the magistrate judge to conduct “all pretrial matters

... except that questions relating to defendants’ immunity are not included in this reference.”

3d Circuit:

Beazer East, Inc. v. The Mead Corp., 412 F.3d 429 ( Cir. 2005), cert. denied, 546 U.S. 3d

1091 (2006)

The district court’s referral of an equitable allocation proceeding in a CERCLA case to a

magistrate judge for an evidentiary hearing and preparation of a report and recommendation

was improper because an equitable allocation proceeding conducted by the magistrate judge

was not a “pretrial matter.” The magistrate judge did not facilitate the district court’s

ultimate adjudicatory function — he assumed that function, thereby making the referral

improper. 

Giangola v. Walt Disney World Co., 753 F. Supp. 148 (D.N.J. 1990)

The magistrate judge had no authority to reconsider his order of remand, since he had no

power to issue the order in the first place.

4th Circuit:

Branning v. Morgan Guar. Trust Co. of New York, 739 F. Supp. 1056 (D.S.C. 1990)

A district judge accepted the magistrate judge’s treatment of a motion to dismiss as a motion

for summary judgment where the parties submitted materials outside the scope of the

pleadings.

Hay v. Waldron, 834 F.2d 481 (5th Cir. 1987)

Where the magistrate judge reserved an issue for future determination, yet included findings

and conclusions on that issue in the report to the district judge, the magistrate judge’s

findings were clearly premature and required reversal and remand to permit further

proceedings on the reserved issue.

6th Circuit:

Vitols v. Citizens Banking Co., 984 F.2d 168 (6th Cir. 1993)

The power of a magistrate judge is limited to the scope of the reference. Without consent,

a reference under § 636(b) is limited to non-case-dispositive pretrial matters or

recommendations on case-dispositive matters. This does not include authority to issue a

dispositive ruling on a motion to certify a district court order for interlocutory appeal.

7th Circuit:

United States v. Asubonteng, 895 F.2d 424 (7th Cir.), cert. denied sub nom. Rivers v. United

States, 494 U.S. 1089 (1990)

The magistrate judge was authorized under 18 U.S.C. § 3161(h)(8)(A) to continue the case

sua sponte and exclude the time of the continuance from SpeedyTrial Act computation. The

December 2013 4 INVENTORY
court will not disturb the magistrate judge’s decision absent an abuse of discretion and a

showing of prejudice.

11th Circuit:

Moore v. Morgan, 922 F.2d 1553 (11th Cir. 1991)

The government defendants’ failure to plead a qualified immunity defense at the first hearing

constituted a waiver of the defense, despite the magistrate judge’s sua sponte order granting

a supplemental evidentiary hearing on the issue.

2. Procedural Requirements

Rule 72(b) of the Federal Rules of Civil Procedure and Rule 59(b) of the Federal Rules of Criminal

Procedure set forth the procedural requirements for case-dispositive matters referred to magistrate

judges under § 636(b)(1)(B). 

1st Circuit:

Koken v. Auburn Manufacturing, Inc., 341 F. Supp. 2d 20 (D. Me. 2004)

A litigant was not permitted to supplement the record on a case-dispositive motion after the

magistrate judge completed a report and recommendation, where the party had sufficient

opportunity to raise all relevant arguments and evidence before the magistrate judge.

3d Circuit:

Scheafnocker v. Comm’r of I.R.S., 642 F.3d 428 (3 Cir. 2011) rd

A magistrate judge’s report and recommendation in one district which was subsequently

vacated when the magistrate judge ordered the case transferred to another district could not

serve as the law of the case governing the rulings of the district to which the case was

transferred. [See Information Memorandum No. 319 for a more detailed summary of this

case.]

5th Circuit:

United States v. Harris, 566 F.3d 422 (5th Cir. 2009), 

The 30-day limit on excludable days for motions taken under advisement under the Speedy

Trial Act, 18 U.S.C. § 3161(h)(1)(H), applies to a report and recommendation prepared by

a magistrate judge, and that an additional 30-day limit on excludable days applies to the

district judge’s de novo review of the report and recommendation. [See Information

Memorandum No. 313 for a more detailed summary of this case.]

Figgie International, Inc. v. Bailey, 25 F.3d 1267 (5th Cir. 1994)

A district judge did not commit error by refusing to admit an additional affidavit in support

of a motion for summary judgment when conducting de novo determination of a magistrate

judge’s report and recommendation where the party failed to introduce the affidavit within

the deadline set by the magistrate judge.

December 2013 5 INVENTORY
Archie v. Christian, 808 F.2d 1132 (5th Cir. 1987) (en banc)

It is good practice for referrals to state plainly the statutory provision under which the court

is proceeding.

8th Circuit:

United States v. Almeida-Perez, 549 F.3d 1162 (8 Cir. 2008) th

A magistrate judge did not commit plain error or violate Fed. R. Evid. 614(b) when he

questioned witnesses during a hearing to suppress evidence referred to the magistrate judge

under 28 U.S.C. § 636(b)(1)(B). [See Information Memorandum No. 313 for a more detailed

summary of this case.]

United States v. Azure, 539 F.3d 904 (8th Cir. 2008)

A magistrate judge did not have authority to conduct a supervised release revocation

proceeding under 18 U.S.C. § 3401(i) where there was nothing in the record to indicate that

the district judge had made a designation of the proceeding to the magistrate judge. 

However, the failure constituted procedural error, not jurisdictional error, and it was waived

when the defendant did not raise it before the district judge.

9th Circuit:

Klamath Siskiyou Wildlands Center v. United States Bureau of Land Management, 589 F.3d

1027 (9 Cir. 2009) th, 

A favorable recommendation in a magistrate judge’s report and recommendation that had not

yet been adopted by a district judge did not render the plaintiffs a “prevailing party” for the

purposes of awarding attorney’s fees under the Equal Access to Justice Act (EAJA), 28

U.S.C. § 2412. [See Information Memorandum No. 316 for a more detailed summary of this

case.]

Dawson v. Marshall, 561 F.3d 930 (9th Cir. 2009)

A district judge who was a former magistrate judge was not precluded from deciding a case

in which the judge had issued a report and recommendation when he was a magistrate judge. 

[See Information Memorandum No. 313 for a more detailed summary of this case.]

United States v. Howell, 231 F.3d 615 (9th Cir. 2000)

A magistrate judge did not abuse his discretion in refusing to hold an evidentiary hearing on

the defendant’s motion to suppress, where the defendant’s motion for an evidentiary hearing

identified no specific facts which, if proved, would allow the court to suppress his

confession. An evidentiary hearing on a case-dispositive motion need be held only when the

moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the

trial court to conclude that contested issues of fact exist.

December 2013 6 INVENTORY
11th Circuit:

Jeffrey S. v. State Bd. of Educ., 896 F.2d 507 (11th Cir. 1990)

The referral of a matter to a magistrate judge under § 636(b)(1)(B) need not be in writing.

3. District Court’s Supervisory Authority

Supreme Court:

United States v. Raddatz, 447 U.S. 667 (1980)

The district judge has broad discretion under § 636(b)(1) to accept, reject, or modify the

magistrate judge’s proposed findings, including discretion to conduct a hearing to resolve

conflicting credibility claims.

1st Circuit:

United States v. Cadieux, 295 F. Supp. 2d 133 (D. Me. 2004)

After defendant’s motion to suppress evidence was referred to a magistrate judge for a report

and recommendation and the defendant moved to withdraw the designation of the magistrate

judge, arguing that objections to the magistrate judge’s report and recommendation were

likely and would require another evidentiary hearing before the district judge, the court

denied the motion, noting that a second evidentiary hearing is not required by the statute and

that judicial efficiency would not be served by granting the motion.

4th Circuit:

Daye v. Orthopaedic Assoc. of Virginia, Ltd., 924 F.2d 1051 (4th Cir. 1991) (Table

disposition -- text available on Westlaw) 

The court of appeals had no jurisdiction, either as a final or an interlocutory appeal, to hear

an “appeal” of a district court’s order referring the matter to a magistrate judge.

5th Circuit:

United States v. Bartholomew, 1991 WL 40316 (E.D. La. 1991), aff’d in part, remanded in

part, 974 F.2d 39 (5th Cir. 1992)

The court vacated a § 636(b)(1)(B) reference to a magistrate judge after determining that an

evidentiary hearing was not necessary and that the claim could be dismissed.

9th Circuit:

Magee v. Rowland, 764 F. Supp. 1375 (C.D. Cal. 1991)

In a proceeding referred to a magistrate judge under § 636(b)(1)(B) for a report and

recommendation, an immediate, interlocutory appeal does not lie to the district judge from

an interim discovery ruling made in that proceeding. Such interlocutory review would

frustrate the purpose of reference of the entire matter to a magistrate judge for a report and

recommendation.

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United States v. DeCoito, 764 F.2d 690 (9th Cir. 1985)

Even if the district judge received and signed the magistrate judge’s report and

recommendation before it was filed, or before copies were sent to the parties, there was no

reversible error.

10th Circuit:

Liverman v. Committee on the Judiciary, U.S. House of Representatives, 51 Fed. Appx. 825

(10th Cir. 2002), cert. denied, 537 U.S. 1160 (2003)

Implicit in the district court’s discretionary authority under § 636(b)(1)(B) to refer a matter

to a magistrate judge is the power to withdraw a reference.

4. Time to File Objections

Section 636(b)(1)(C) provides that “[w]ithin ten days after being served with a copy, any party may

serve and file written objections to such proposed findings and recommendations as provided by

rules of court.” Rule 72(b) of the Federal Rules of Civil Procedure and Rule 59(b) of the Federal

Rules of Criminal Procedure govern case-dispositive motion practice before magistrate judges.

1st Circuit:

United States v. Moores, 620 F. Supp. 241 (D.P.R. 1985)

The time between the filing of pretrial motions with a magistrate judge and the prompt

disposition of those motions was excludable under the Speedy Trial Act. The 10-day

objection period under § 636(b)(1)(C)is also excludable. The district court has an additional

excludable 30 days to review objections to the magistrate judge’s report and

recommendation.

2d Circuit:

Wesolek v. Canadair, Ltd., 838 F.2d 55 (2d Cir. 1988)

The district court had discretion under Fed. R. Civ. P. 6 to permit an extension of the 10-day

objection period to the magistrate judge’s report and recommendation. The movant must

assert excusable neglect to the district court. The district court’s decision is reviewed by the

court of appeals under an abuse of discretion standard.

Harb v. Gallagher, 131 F.R.D. 381 (S.D.N.Y. 1990)

Requests for extensions of time to file objections to the magistrate judge’s report and

recommendation should be made to the district judge, not the magistrate judge.

4th Circuit:

United States v. Rice, 741 F. Supp. 101 (W.D.N.C. 1990)

Objections to reports and recommendations on case-dispositive motions must be filed within

10 days after service of the report and recommendation. Weekends and holidays are

excluded under Fed. R. Crim. P. 45 and litigants are given three additional days for mail

service under Rule 45(e).

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5th Circuit:

Cay v. Estelle, 789 F.2d 318 (5th Cir. 1986)

The district court had discretionary authority under Fed. R. Civ. P. 6 to allow a pro se

prisoner additional time to file objections to the magistrate judge’s report and

recommendation after the 10-day objection period had run. 

6th Circuit:

United States v. Andress, 943 F.2d 622 (6th Cir. 1991)

A new period of excludable delay under § 3161(h)(1)(F) begins immediately upon the filing

of the magistrate judge’s report and recommendation.

Patterson v. Mintzes, 717 F.2d 284 (6th Cir. 1983)

When written objections to the magistrate judge’s report and recommendation were filed

more than 10 days after service, but were nonetheless considered by the district court,

appellate review was not barred.

7th Circuit:

Lerro v. The Quaker Oats Co., 84 F.3d 239 (7th Cir. 1996)

When calculating the 10-day period for filing objections under Rule 72(b), Rule 6(a)’s

exclusion of weekends and holidays should be applied first, and then the three extra days for

service by mail provided under Rule 6(e) should be added to the time period. 

United States v. Thomas, 788 F.2d 1250 (7th Cir.), cert. denied, 479 U.S. 853 (1986)

The 10-day objection period under § 636(b)(1)(C) is not automatically excludable under the

Speedy Trial Act. 

8th Circuit:

Foss v. Federal Intermediate Credit Bank of St. Paul, 808 F.2d 657 (8th Cir. 1986)

Pro se petitioners’ failure to file timely objections to the magistrate judge’s report and

recommendation was not a bar to appeal. 

9th Circuit:

United States v. Barney, 568 F.2d 134 (9th Cir.), cert. denied, 435 U.S. 955 (1978)

The 10-day objection period under § 636(b) is a maximum, not a minimum, time limit. The

district judge may require objections within a shorter period if calendar exigencies demand

it.

11th Circuit:

United States v. Mastrangelo, 733 F.2d 793 (11th Cir. 1984)

The entire period of time between the filing of a motion and the conclusion of a hearing is

excludable under the Speedy Trial Act. 

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5. Form of Objections

Rule 72(b) of the Federal Rules of Civil Procedure and Rule 59(b) of the Federal Rules of Criminal

Procedure state that a party “may serve and file specific written objections to the proposed findings

and recommendations” of the magistrate judge in case-dispositive matters.

1st Circuit:

United States v. Vega, 678 F.2d 376 (1st Cir. 1982)

A criminal defendant’s motion to adopt the magistrate judge’s report was an unmistakable

signal to the district judge that the report and recommendation was agreed to by the

defendant. Because the defendant did not file objections with the district judge, he waived

the right to object to the report at the appellate level.

Entact Services, LLC v. Rimco, Inc., 526 F. Supp. 2d 213 (D.P.R. 2007)

The district judge assessed fees under state law against a party whose objection to the

magistrate judge’s report and recommendation and request for a rehearing before the district

judge to present further evidence were “unreasonably adamant or stubbornly litigious.”

Crooker v. Van Higgins, 682 F. Supp. 1274 (D. Mass. 1988)

Written objections must be specific, concise and supported by legal arguments and citations

to the record. Otherwise, de novo review by the district judge may be foreclosed.

2d Circuit:

Paddington Partners v. Bouchard, 34 F.3d 1132 (2d Cir. 1994)

In objecting to a magistrate judge’s report and recommendation to a district judge, a party

has “no right to present further testimony when it offer[s] no justification for not offering the

testimony at the hearing before the magistrate [judge].” 

3d Circuit

Barna v. City of Perth Amboy, 42 F.3d 809 (3d Cir. 1994)

The court of appeals reversed the district court’s dismissal of a § 1983 complaint against the

defendant where the magistrate judge, although stating that he would recommend dismissal,

did not file a report and recommendation to the district judge recommending the dismissal

of the claims against the officer, and the plaintiffs had no document to which they could state

their objections.

5th Circuit:

Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982)

Objections to the magistrate judge’s report must be specific. Frivolous, conclusive, or

general objections need not be considered by the district court.

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6th Circuit:

United States v. Sawaf, 74 F.3d 119 (6th Cir. 1996)

Where the parties’ objection to the magistrate judge’s report and recommendation consisted

merely of a letter stating “we object to the report and recommendation given by [the

magistrate judge]. Therefore we request a hearing in this matter,” the court of appeals held

that although such objections would not be minimally sufficient in all circumstances, the

letter here was a sufficient objection to the limited legal question on appeal.

Kelly v. Withrow, 25 F.3d 363 (6th Cir. 1994)

The court permitted a prisoner to raise only a general objection to the magistrate judge’s

report and recommendation in a habeas corpus proceeding where the objection referred to

an earlier document raising specific arguments.

Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir. 1987)

Making some objections, but failing to raise others, will not preserve all objections a party

might have made. Only specific objections to a report and recommendation are preserved

for appellate review.

Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986)

The district court need not provide de novo review where the objections to the magistrate

judge’s report and recommendation are frivolous, conclusive, or general. The parties have

a duty to pinpoint the portions of the report that the district judge should consider. 

Stanfield v. Horn, 704 F. Supp. 1486 (M.D. Tenn. 1988)

The district judge has authority under Fed. R. Civ. P. 12 to strike libelous, scandalous,

vituperative, and impertinent objections to a magistrate judge’s report and recommendation.

7th Circuit:

Lorentzen v. Anderson Pest Control, 64 F.3d 327 (7th Cir. 1995), cert. denied, 517 U.S. 1136

(1996)

Failure to file timely, written objections to a magistrate judge’s report and recommendation

waived the right to appeal all legal and factual issues addressed in the report and

recommendation.

Lockert v. Faulkner, 843 F.2d 1015 (7th Cir. 1988)

Where the argument raised on appeal was not included in the objections to the magistrate

judge’s report, waiver of the argument on appeal was upheld.

6. De Novo Determination

28 U.S.C. § 636(b)(1)(C) provides that after a magistrate judge files proposed findings and

recommendations with the district court:

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A judge of the court shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which objection is

made. A judge of the court may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate. The judge may also receive

further evidence or recommit the matter to the magistrate with instructions. 

The legislative history accompanying the 1976 amendments to the Federal Magistrates Act briefly

touches upon a definition of the term “de novo determination”:

The use of the words “de novo determination” is not intended to require the judge to

actually conduct a new hearing on contested issues. Normally, the judge, on

application, will consider the record which has been developed before the magistrate

and make his own determination on the basis of that record, without being bound to

adopt the findings and conclusions of the magistrate. In some specific instances,

however, it may be necessary for the judge to modify or reject the findings of the

magistrate, to take additional evidence, recall witnesses, or recommit the matter to

the magistrate for further proceedings. H.R. Rep. No. 1609, 94th Cong., 2d Sess. 3

(1976). 

The House report also cites with approval a 9th Circuit opinion holding that if neither party contests

a magistrate judge’s proposed findings of fact, the district judge may assume their correctness and

decide the motion on the applicable law. Id., citing Campbell v. United States District Court, 501

F.2d 196 (9th Cir.), cert. denied, 419 U.S. 879 (1974).

Since § 636(b)(1)(C) was enacted, many courts have discussed the meaning of de novo

determination. Cases on this issue are set forth in Appendix B.

7. District Judge Authority to Overrule a Magistrate Judge’s Credibility Finding

in a Report and Recommendation Without Conducting a De Novo Hearing

2d Circuit:

Cullen v. United States, 194 F.3d 401 (2d Cir. 1999)

The district judge erred in rejecting a magistrate judge’s report and recommendation based

on the credibility of witnesses who testified at an evidentiary hearing in a federal habeas

corpus proceeding without holding a separate hearing to hear the witnesses’ testimony de

novo.

9th Circuit:

United States v. Thoms, 684 F.3d 893 (9th Cir. 2012)

A district judge abused his discretion in not holding a de novo hearing when he rejected a

report issued by a magistrate judge, where the magistrate judge had made a determination

that the government’s witness was credible after an evidentiary hearing and recommended

denial of the defendant’s motion to suppress. In so ruling, the appellate court established a

December 2013 12 INVENTORY
new rule requiring that in most situations a district judge should conduct a de novo hearing

when a magistrate judge issues a report making a credibility determination that favors the

government’s witness and the district judge disagrees with the magistrate judge’s

recommendation concerning the witness’s credibility. [See Information Memorandum No.

323 for a more detailed summary of this case.]

United States v. Ridgway, 300 F.3d 1153 (9 Cir. 2002) th

A district judge could not reject a magistrate judge’s credibilityfindings made in a report and

recommendation on a motion to suppress without conducting a de novo hearing of the

testimony in question.

11th Circuit:

United States v. Powell, 628 F. 3d 1254 (11 Cir. 2010) th

The Eleventh Circuit held that a district judge who rejected a magistrate judge’s

determination of witnesses’ credibility in a report and recommendation on the defendant’s

motion to suppress without rehearing the disputed testimony in a separate hearing violated

the defendant’s right to due process. [See Information Memorandum No. 318 for a more

detailed summary of this case.]

United States v. Cofield, 272 F.3d 1303 (11th Cir. 2001)

The district judge erred in rejecting the credibility findings of a magistrate judge in a report

and recommendation on a motion to suppress evidence without first re-hearing the disputed

testimony de novo. 

8. Appellate Review

In Thomas v. Arn, 474 U.S. 140 (1985), the Supreme Court held that the supervisory powers of

appellate courts include authority to adopt a local rule imposing a “waiver” doctrine where a party

fails to object to a magistrate judge’s report and recommendation. Appendix 3 lists the positions of

the various circuits regarding the imposition of waiver rules and exceptions to such rules.

B. Excepted Motions

The eight specific “case-dispositive” motions that may be referred to magistrate judges under

§ 636(b)(1)(B) are listed in § 636(b)(1)(A) as exceptions to the provisions of that section. The

“excepted” motions are: 

(1) motions for injunctive relief; 

(2) motions for judgment on the pleadings; 

(3) motions for summary judgment; 

(4) motions to dismiss or quash an indictment or information; 

(5) motions to suppress evidence in a criminal case; 

(6) motions to dismiss or permit maintenance of a class action; 

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(7) motions to dismiss for failure to state a claim upon which relief can be granted; and 

(8) motions to involuntarily dismiss an action.

1. Motions for Injunctive Relief

2d Circuit:

Hispanic Counseling Center v. Incorporated Village of Hempstead, 237 F. Supp. 2d 284

(E.D.N.Y. 2002)

After de novo review, the district judge adopted the magistrate judge’s recommendation to

grant a preliminary injunction.

3d Circuit:

Hoeber v. Inter’l Brotherhood of Elec. Workers., 498 F. Supp. 122 (D.N.J. 1980)

Even if 29 U.S.C. § 160(j) envisioned that district judges would personally hear requests for

injunctive relief, the subsequently-enacted Federal Magistrates Act clearly prevails in

permitting the referral of an injunction motion to a magistrate judge under § 636(b)(1)(B).

7th Circuit:

Associates Financial Services Co., Inc. v. Mercantile Mortgage Co., 727 F. Supp. 371 (N.D.

Ill. 1989)

Preliminary injunctions are case-dispositive matters. Temporary restraining orders are

generallynon-case-dispositive sanctionswhich at some point can become coercive temporary

preliminary injunctions. 

11th Circuit:

Jeffrey S. by Ernest S. v. State Board of Education of State of Georgia, 896 F.2d 507 (11th

Cir. 1990)

A motion for preliminary injunction was properly handled as a case-dispositive matter, with

the magistrate judge submitting proposed findings of fact and recommended disposition,

subject to de novo determination by the district judge.

Gropp v. United Airlines, Inc., 817 F. Supp. 1558 (M.D. Fla. 1993)

A magistrate judge may conduct hearings and submit proposed findings of fact and

recommendations for disposition by a district judge on a motion for injunctive relief. A

district judge must make a de novo determination of those portions to which objections are

made. The clearly erroneous standard applies to findings by the magistrate judge to which

no objections were filed.

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2. Motions for Summary Judgment

2d Circuit:

Hynes v. Squillace, 143 F.3d 653 (2d Cir.), cert. denied, 525 U.S. 907 (1998)

The district judge had discretion to consider supplemental evidence on de novo review of the 

magistrate judge’s recommendation to grant the defendants’ motions for summaryjudgment.

5th Circuit:

United Farmers Agents Assoc., Inc. v. Farmers Insurance Exchange, 89 F.3d 233 (5th Cir.

1996), cert. denied, 519 U.S. 1116 (1997)

The court of appeals affirmed the district judge’s adoption of the magistrate judge’s

recommendation to grant summary judgment and to dismiss the suit, noting that de novo

review of the record by the court of appeals cured any asserted error that the district judge

had failed to review the magistrate judge’s report and recommendation de novo.

Tolbert v. United States, 916 F.2d 245 (5th Cir. 1990)

The court of appeals reviews for plain error the district judge’s adoption of a magistrate

judge’s report and recommendation for summaryjudgment where the appealing partydid not

object to the magistrate judge’s recommendation. The district judge’s rejection of a

summary judgment recommendation is reviewed de novo.

3. Motions to Dismiss

1st Circuit:

Transwitch Corp. v. Galazar Networks, Inc., 377 F. Supp. 2d 284 (D. Mass. 2005)

A magistrate judge appropriately treated the portion of the plaintiff’s motion to amend that

sought to drop a claim as a motion to dismiss, and therefore issued a report and

recommendation on it.

2d Circuit:

Katz v. Molic, 128 F.R.D. 35 (S.D.N.Y. 1989), aff’d, 909 F.2d 1473 (2d Cir. 1990)

The magistrate judge’s judicial discretion is not restricted when issuing a report and

recommendation under § 636(b)(1)(B). A magistrate judge was therefore authorized to

recommend dismissal under Fed. R. Civ. P. 12 for failure to state a claim, although the

reference was to hear a motion for summary judgment.

Zises v. Dept. of Social Services, 112 F.R.D. 223 (E.D.N.Y. 1986)

The district court treated the magistrate judge’s order as a case-dispositive report and

recommendation under § 636(b)(1)(B) where the magistrate judge ordered dismissal of the

case with prejudice under Fed. R. Civ. P. 37 for the plaintiff’s willful and contumacious

refusal to obey a discovery order.

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7th Circuit:

United States v. Walker, 92 F.3d 714 (7th Cir. 1996)

Affording “special deference” to the district court’s determination whether the government

was negligent, the court of appeals affirmed the district judge’s adoption of the magistrate

judge’s report recommending denial of the defendant’s motion to dismiss the indictment.

Tarkowski v. Pennzoil Co., 100 F.R.D. 37 (N.D. Ill. 1983)

Although a magistrate judge cannot dismiss a party’s claim for lack of prosecution, under

§ 636(b)(1)(B) he can recommend dismissal.

9th Circuit:

Hunt v. Pliler, 384 F.3d 1118 (9th Cir. 2004)

A motion to dismiss a habeas corpus petition as a mix of exhausted and unexhausted claims

was a case-dispositive matter on which the magistrate judge should have submitted proposed

findings and recommendations under § 636(b)(1)(B).

10th Circuit:

Donovan v. Gingerbread House, Inc., 106 F.R.D. 57 (D. Colo. 1985), rev’d on other 

grounds, 907 F.2d 115 (10th Cir. 1989)

A magistrate judge does not have authority to order the involuntary dismissal of a civil

action. The court therefore treated the magistrate judge’s order as a report and

recommendation, applying de novo review. 

4. Motions to Suppress Evidence in a Criminal Case

Supreme Court:

United States v. Raddatz, 447 U.S. 667 (1980)

The Federal Magistrates Act authorizes magistrate judges to handle motions to suppress

evidence under § 636(b)(1)(B), provided the district judge conducts de novo determination,

and due process does not require that de novo determination include a rehearing.

7th Circuit:

United States v. Jaramillo, 891 F.2d 620 (7th Cir. 1989), cert. denied, 494 U.S. 1069 (1990)

Although the government failed to argue that probable cause existed to arrest the defendants

until after the magistrate judge suppressed the evidence obtained due to lack of defendants’

consent to search, the magistrate judge’s recommendation that the government’s probable

cause argument was waived was not binding on the district judge.

10th Circuit:

United States v. Mora, 135 F.3d 1351 (10th Cir. 1998)

The SpeedyTrial Act allows an additional excludable 30-day “under advisement” period for

the district judge to review the magistrate judge’s report and recommendation on a motion

to suppress.

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5. Class Actions

2d Circuit:

Ruland v. General Electric Co., 94 F.R.D. 164 (D. Conn. 1982)

Referral of a class certification motion to a magistrate judge is constitutionally valid under

§ 636(b)(1)(B), as long as the district judge conducts de novo determination.

3d Circuit:

Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392 (D.N.J. 1988), aff’d in part, rev’d in

part on other grounds, 862 F.2d 439 (3d Cir.), aff’d and remanded, 493 U.S. 165 (1989)

The magistrate judge’s rulings on motions in a putative class action, including the propriety

of the court’s notice to potential class members, class certification, communications between

attorneys and class members, and discovery matters, are subject to de novo review on

questions of law, even though some of these motions may not dispose of claims or defenses.

Garris v. Gianetti, 160 F.R.D. 61 (E.D. Pa. 1995)

After conducting de novo review, the district judge adopted the magistrate judge’s

recommendation not to certify prison inmates’ civil rights case as a class action.

C. Prisoner Litigation

The 1976 amendments to the Federal Magistrates Act (Pub. L. No. 94-577) specifically superseded

the decision of the Supreme Court in Wingo v. Wedding, 418 U.S. 461 (1974). A magistrate judge’s

authority in prisoner cases assigned under § 636(b)(1)(B) includes not only the power to make

preliminary reviews of the cases, but also the authority to conduct hearings and to receive evidence

relevant to the issues involved in these cases. See H.R. Rep. No. 1609, 94th Cong., 2d Sess. 11; S.

Rep. No. 625, 94th Cong., 2d Sess. 9 (1976).

1. Applications for Posttrial Relief (Habeas Corpus)

Under § 636(b)(1)(B), district judges may refer “applications for posttrial relief by individuals

convicted of criminal offenses” to magistrate judges for proceedings on a report and recommendation

basis. District judges may refer petitions for writs of habeas corpus under 28 U.S.C. § 2241, 28

U.S.C. § 2254, and 28 U.S.C. § 2255 to magistrate judges for initial proceedings, including

evidentiary hearings.

The Rules Governing Section 2254 Cases in the United States District Courts and the Rules

Governing Section 2255 Proceedings for the United States District Courts refer directly to 28 U.S.C.

§ 636 when discussing the powers of a magistrate judge.

1st Circuit:

Gioiosa v. U.S., 684 F.2d 176 (1st Cir. 1982)

The district court erred in applying the clearly erroneous standard of review to the magistrate

judge’s recommendation to deny the defendant’s motion to vacate his conviction. 

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2d Circuit:

Virella v. United States, 750 F. Supp. 111 (S.D.N.Y. 1990)

The district court adopted the magistrate judge’s recommendation issued under

§ 636(b)(1)(B) on a prisoner petition under § 2255 to vacate the defendant’s sentence. 

Because the defendant’s allegations were patently meritless, the petition was properly

dismissed without an evidentiary hearing. (No discussion of magistrate judge authority.)

3d Circuit:

Sullivan v. Cuyler, 723 F.2d 1077 (3d Cir. 1983)

Applications for posttrial relief are properly referred to a magistrate judge under

§ 636(b)(1)(B), including hearings to determine whether a conflict of interest existed during

the petitioner’s state court trial.

4th Circuit:

United States v. Bryson, 981 F.2d 720 (4th Cir. 1992)

The magistrate judge did not have authority to decide a motion to vacate a sentence under 

§ 2255 without the parties’ consent, even where the magistrate judge had accepted the

defendant’s guilty plea and imposed the sentence with the defendant’s consent in a

misdemeanor case. 

5th Circuit:

Moody v. Johnson, 139 F.3d 477 (5th Cir.), cert. denied, 525 U.S. 940 (1998)

The court of appeals affirmed the district court’s adoption of the magistrate judge’s

recommendation denying federal habeas corpus relief, entered after conducting an

evidentiary hearing, and finding that petitioner had not overcome the presumption of

correctness afforded to state court findings and that petitioner did not prove that he was

incompetent to stand trial.

Jones v. Johnson, 134 F.3d 309 (5th Cir. 1998)

A magistrate judge did not have authority to issue a final order for a certificate of probable

cause to appeal a habeas corpus matter.

6th Circuit:

Flournoy v. Marshall, 842 F.2d 875 (6th Cir. 1988)

The legislative history of § 636(b)(1)(B) expressly states that § 636(b)(1)(B) applies to

habeas corpus petitions under § 2254. Dicta: § 636(b)(2) was not intended to enable habeas

corpus matters to be referred to magistrate judges.

8th Circuit:

Patterson v. Von Riesen, 999 F.2d 1235 (8th Cir. 1993)

A magistrate judge’s recommendation that a prisoner’s habeas corpus petition be granted is

not a final judgment unless the parties consented to the magistrate judge’s authority. The

prisoner’s continued confinement remained valid until the district judge accepted the

magistrate judge’s report and ordered habeas corpus relief.

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9th Circuit:

Hinman v. McCarthy, 676 F.2d 343 (9th Cir.), cert. denied, 459 U.S. 1048 (1982)

A magistrate judge’s evidentiary hearings and report and recommendation on a habeas

corpus petition did not violate the Constitution because the district judge retained final

authority to decide the case.

2. Petitions Challenging Conditions of Confinement

Section 636(b)(1)(B) specifically authorizes district judges to refer “prisoner petitions challenging

conditions of confinement” to magistrate judges for preparation of reports and recommendations. 

These cases usually arise under 42 U.S.C. § 1983. 

Supreme Court:

McCarthy v. Bronson, 500 U.S. 136 (1991)

Congress intended the “conditions of confinement” language of § 636(b)(1)(B) to include

cases alleging a specific episode of unconstitutional conduct. Section 636(b)(1)(B)

authorizes the nonconsensual referral of all prisoner petitions to magistrate judges.

5th Circuit:

McAfee v. Martin, 63 F.3d 436 (5th Cir. 1995)

The court of appeals vacated the district court’s adoption of the magistrate judge’s

recommendation to dismiss a § 1983 claim, holding that the plaintiff had not implicitly

waived an earlier jury demand by participating without objection in an evidentiary hearing

conducted by the magistrate judge.

Jackson v. Cain, 864 F.2d 1235 (5th Cir. 1989)

The parties’ consent is not required for the district judge to refer a prisoner petition to a

magistrate judge for a report and recommendation, including the proposed determination of

a motion for summary judgment.

8th Circuit:

Gentile v. Missouri Dep’t of Corrections and Human Resources, 986 F.2d 214 (8th Cir.

1993)

The magistrate judge was not authorized to conduct ex parte investigations, including

interviews with witnesses, when considering in forma pauperis and summary judgment

motions in prisoner civil rights cases. The magistrate judge should maintain the adversarial

system rather than use inquisitional methods when conducting hearings in prisoner cases.

10th Circuit:

Clark v. Poulton, 963 F.2d 1361 (10th Cir.), cert. denied, 506 U.S. 1014 (1992)

Elements of petitioner’s excessive force civil rights case could be referred to a magistrate

judge under § 636(b)(1)(B) as a conditions of confinement matter or under § 636(b)(3).

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3. Other Prisoner Motions

2d Circuit:

Wright v. Santoro, 714 F. Supp. 665 (S.D.N.Y.), aff’d, 891 F.2d 278 (2d Cir. 1989)

A magistrate judge may determine whether or not to appoint counsel in a pro se § 1983

action.

5th Circuit:

Donaldson v. Ducote, 373 F.3d 622 (5 Cir. 2004) th

A magistrate judge did not have authority to issue a final order denying a prisoner plaintiff’s

motion to proceed in forma pauperis on an appeal to the court of appeals of the dismissal of

the prisoner’s civil rights action under § 1983.

Wesson v. Oglesby, 910 F.2d 278 (5th Cir. 1990)

A magistrate judge may conduct hearings to determine whether in forma pauperis petitions

under 28 U.S.C. § 1915(d) should be dismissed as frivolous.

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985)

A magistrate judge may be referred prisoner conditions of confinement petitions for

evidentiary hearings to determine whether the suits are frivolous or to determine the factual

basis of conclusory allegations, in the nature of a motion for more definite statement under

Fed. R. Civ. P. 12(e). The court, however, cannot refer these matters for trial by a magistrate

judge over the prisoner’s objection. 

6th Circuit:

Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990)

A magistrate judge may be referred petitions to proceed in forma pauperis under

§ 636(b)(1)(B). The magistrate judge may issue an order granting such a motion, but may

only make a recommendation to deny such a motion. 

8th Circuit:

Henson v. Falls, 912 F.2d 977 (8th Cir. 1990)

Where a magistrate judgemade credibilitydeterminations in a prisoner case that was referred

for a directed verdict hearing, the defendant was deprived of his right to a jury trial.

In re Wickline, 796 F.2d 1055 (8th Cir. 1986)

A plain reading of § 636(b)(1)(B) shows no statutory authority for the referral of

nonconsensual prisoner jury trials to magistrate judges.

10th Circuit:

Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987)

A magistrate judge may hear and issue a report and recommendation on the defendant’s

motion under 28 U.S.C. § 1915(d) to dismiss an in forma pauperis petition as frivolous,

December 2013 20 INVENTORY
provided the district judge conducts de novo determination of those portions of the

magistrate judge’s report and recommendation to which objections were made.

4. Appeals in Prisoner Cases

2d Circuit:

Frank v. Johnson, 968 F.2d 298 (2d Cir.), cert. denied, 506 U.S. 1038 (1992)

A prisoner’s failure to object within 10 days of the magistrate judge’s report recommending

dismissal of a habeas corpus petition waived further review of the report and

recommendation if the prisoner received clear notice of the consequences of failing to object.

5th Circuit:

Fitzpatrick v. Procunier, 750 F.2d 473 (5th Cir. 1985)

A prisoner’s failure to allege that the presiding magistrate judge was biased until filing

objections to the magistrate judge’s report and recommendation constituted a waiver of the

issue.

6th Circuit:

Sellers v. Morris, 840 F.2d 352 (6th Cir. 1988)

The court construed pro se objections to a magistrate judge’s report and recommendation

liberally, and proper statutory citations were not required.

Ivey v. Wilson, 832 F.2d 950 (6th Cir. 1987)

Prison officials waived their qualified immunity defense in the district court by failing to

object to the magistrate judge’s report, and appellate review was also waived.

10th Circuit:

Hardiman v. Reynolds, 971 F.2d 500 (10th Cir. 1992)

Where the magistrate judge did not include a clear warning explaining the consequences of

not objecting to the magistrate judge’s report and recommendation, the pro se prisoner did

not waive further review of the report by failing to file objections.

Dunn v. White, 880 F.2d 1188 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990)

Although the pro se prisoner’s objections to the magistrate judge’s report and

recommendation were filed after the ten-day limit, theywere mailed in a timely manner, and

the district judge considered the claims.

D. Analogous Matters

Although § 636(b)(1)(B) applies to the eight specific motions “excepted” in § 636(b)(1)(A),

Congress did not intend the list to be exclusive. Courts have therefore interpreted § 636(b)(1)(B)

to allow the referral of analogous case-dispositive matters to magistrate judges for proceedings on

a report and recommendation basis.

December 2013 21 INVENTORY
1. Motions to Proceed In Forma Pauperis (28 U.S.C. § 1915)

Courts have concluded generally that the denial of a plaintiff's motion to proceed in forma pauperis

under 28 U.S.C. § 1915 is a case-dispositive matter analogous to a motion to dismiss for which

magistrate judges must prepare a report and recommendation. By contrast, however, magistrate

judges have been held to have authority to issue orders granting in forma pauperis status under §

1915. See Section 4, supra, for additional opinions on this issue.

4th Circuit:

Gent v. Radford University, 187 F.3d 629 (4th Cir. 1999) (Table disposition)

A magistrate judge may enter a dispositive order denying a plaintiff’s motion to proceed in

forma pauperis only if the parties consent to the magistrate judge’s jurisdiction under

§ 636(c).

 

5th Circuit:

Donaldson v. Ducote, 373 F.3d 622 (5th Cir. 2004)

A magistrate judge did not have authority to issue a final order denying a prisoner plaintiff’s

motion to proceed in forma pauperis on an appeal of the dismissal of the prisoner’s civil

rights action.

6th Circuit:

Cavender v. Seabold, 992 F.2d 1216 (6th Cir. 1993) (Table disposition)

A magistrate judge lacks authority to deny in forma pauperis status. 

Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990)

A magistrate judge may be referred petitions to proceed in forma pauperis under

§ 636(b)(1)(B). The magistrate judge may issue an order granting such a motion, but may

only make a recommendation to deny such a motion. 

9th Circuit:

Stafford v. Barbaro, 127 Fed. Appx. 354 (9th Cir. 2005)

Because there was no clear and unambiguous expression of consent by all the parties to the

magistrate judge’s jurisdiction, the magistrate judge lacked authority to enter a final order

in the case, including ruling on the plaintiff’s motion to proceed in forma pauperis. 

Tripati v. Rison, 847 F.2d 548 (9th Cir. 1988)

A magistrate judge may not enter a final judgment on a motion to proceed in forma pauperis

unless the parties have consented to have the magistrate judge decide the motion and enter

judgment. 

10th Circuit:

Lister v. Department of Treasury, 408 F.3d 1309 (10th Cir. 2005)

A magistrate judge’s error in issuing an order denying the plaintiff’s motion to proceed in

forma pauperis, rather than issuing a report recommending denial of the application, did not

December 2013 22 INVENTORY
constitute reversible error where the district judge conducted de novo review of the

magistrate judge’s order.

Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987)

A magistrate judge may issue a report and recommendation on a defendant’s motion under

28 U.S.C. § 1915(d) to dismiss an in forma pauperis petition as frivolous, provided the

district judge conducts de novo determination of those portions of the magistrate judge’s

report and recommendation to which objections were made.

2. Mental Competency Proceedings

8th Circuit:

United States v. Dallas, 461 F. Supp. 2d 1093 (D. Neb. 2006)

Acknowledging that courts in other circuits have determined that magistrate judges do not

have authority under § 636(b)(1)(A) to issue a final order regarding the involuntary

administration of medication to a criminal defendant, “[o]ut of an abundance of caution,” the

district judge considered the magistrate judge’s order as a report and recommendation and

conducted de novo review.

United States v. Horn, 955 F. Supp. 1141 (D. Minn. 1997)

A magistrate judge issued a report and recommendation to involuntarily transfer a prisoner

to a psychiatric facility for custody and treatment. (Opinion by a magistrate judge, with no

discussion of magistrate judge authority.)

9th Circuit:

United States v. Rivera-Guerrero, 377 F.3d 1064 (9th Cir. 2004)

A magistrate judge did not have authority under 28 U.S.C. § 636(b)(1)(A) to issue a final

order for the involuntary medication of a defendant to render him competent to stand trial.

Because the magistrate judges’ involuntary medication order was case-dispositive, the

district court should have treated the magistrate judge’s forced medication order as proposed

findings and recommendations subject to de novo review. 

United States v. George, 2007 WL 1146395 (D. Ariz. 2007)

A magistrate judge held that he did not have authority under 28 U.S.C. § 636(b)(1)(A) to

issue a final order determining a defendant’s mental competence to stand trial in a felony

case and therefore ordered the matter transferred to a district judge for final disposition.

11thCircuit:

United States v. Battle, 264 F. Supp. 2d 1088 (N.D. Ga. 2003)

A magistrate judge had the authority under 28 U.S.C. § 636(b) to conduct the competency

hearing under 18 U.S.C. § 4241; further, an intensive review of the magistrate judge's

recommended determination was undertaken by the district judge. 

December 2013 23 INVENTORY
3. Social Security Cases

Supreme Court:

Mathews v. Weber, 423 U.S. 261 (1976)

A social security benefit appeal may be referred to a magistrate judge for a report and

recommendation as to whether the record contained substantial evidence to support the 

administrative determination, subject to de novo review by the district judge.

 

6th Circuit:

Pope v. Harris, 508 F. Supp. 773 (S.D. Ohio 1981)

The court may refer a social security case to a magistrate judge for a report and

recommendation on the issue of substantial evidence under 42 U.S.C. § 405(g).

4. Enforcement of IRS Summonses

Supreme Court

United States v. Jose, 519 U.S. 54 (1996)

A district judge’s order adopting the magistrate judge’s report and recommendation, which

recommended imposing a notice requirement on the IRS in addition to recommending the

enforcement of two summonses, was a final order for purposes of appeal to the court of

appeals. 

1st Circuit:

United States v. Christo, 907 F. Supp. 519 (D.N.H. 1995)

A magistrate judge may not order the enforcement of an IRS summons, but must issue a

report and recommendation subject to de novo review by the district judge.

5th Circuit:

United States v. First Nat. Bank of Atlanta, 628 F.2d 871 (5th Cir. 1980)

A magistrate judge may not enter a final judgment to enforce an IRS summons under 26

U.S.C. § 7604. Although the Internal Revenue Code restricts such enforcement power to a

district judge, the judge may refer a summons enforcement proceeding to a magistrate judge

under § 636(b)(1)(B) for a report and recommendation.

6th Circuit:

United States v. B & D Vending, Inc., 398 F.3d 728 (6th Cir. 2004)

A magistrate judge had the authority to conduct a hearing and submit a report and

recommendation on the government’s complaint to enforce an IRS summons under 26

U.S.C. § 7602, even though the district judge did not formally refer the matter to the

magistrate judge until after the evidentiary hearing was conducted.

December 2013 24 INVENTORY
5. Letters Rogatory (28 U.S.C. § 1782)

Courts disagree over whetherletters rogatorymatters are dispositive of a claim or defense before the

court. See Section 4, supra, for additional opinions on this issue.

9th Circuit:

In re Request for Judicial Assistance from Seoul Dist. Criminal Court, Seoul, Korea, 428 F.

Supp. 109 (N.D. Cal.), aff’d, 555 F.2d 720 (9th Cir. 1977)

Only a district judgemay orderjudicial assistance under 28 U.S.C. § 1782. The written order

of reference appointing a magistrate judge in this matter limited the magistrate judge to

administrative functions only, and the magistrate judge had no authority to deny the request

for assistance. The matter was therefore treated as a report and recommendation under

§ 636(b)(1)(B).

10th Circuit:

In re Application of Phillips v. Beierwaltes, 466 F.3d 1217 (10th Cir. 2006)

The magistrate judge did not have authority to make a final ruling on a foreign party’s

application for assistance in obtaining discovery from non-party witnesses under 28 U.S.C.

§ 1782, where there was no evidence that the parties consented to the magistrate judge’s

authority.

11th Circuit:

In re Request from Swiss Federal Dept. of Justice and Police, 731 F. Supp. 490 (S.D. Fla.

1990)

The district court adopted the magistrate judge’s recommendation under § 636(b)(1)(B) on

motions to quash a subpoena and to grant a protective order under 28 U.S.C. § 1782. (No

discussion of magistrate judge authority.)

6. Pretrial Matters in Other Proceedings

1st Circuit:

United States v. Ecker, 923 F.2d 7 (1st Cir. 1991)

A magistrate judge’s commitment order issued under 18 U.S.C. § 4241 must be reviewed

by the district judge under § 636(b)(1) before it becomes a final appealable order reviewable

by the court of appeals. (No statement as to whetherthe matter was referred to the magistrate

judge under § 636(b)(1)(A) or (B).)

2d Circuit:

Jean-Laurent v. C.O. Wilkerson, 461 Fed. Appx. 18 (2d Cir. 2012)

A magistrate judge exceeded his authority under 28 U.S.C. § 636(b)(1)(A) by issuing a final

order denying a pro se prisoner’s motion to amend his complaint to include any state law

claims, which had previously survived the defendant’s motion to dismiss. [See Information

Memorandum No. 323 for a more detailed summary of this case.]

December 2013 25 INVENTORY
3d Circuit:

N.L.R.B. v. Frazier, 966 F.2d 812 (3d Cir. 1992)

A proceeding to enforce a National Labor Relations Board subpoena ad testificandum should

have been referred to the magistrate judge as a case-dispositive matter under § 636(b)(1)(B)

subject to de novo determination by the district judge. The magistrate judge had no authority

to issue a “final” order enforcing the subpoena.

6th Circuit:

United States Fidelity & Guaranty Co. v. Thomas Solvent Co., 132 F.R.D. 660 (W.D. Mich.

1990), aff’d, 955 F.2d 1085 (6th Cir. 1991)

A motion to realign parties was a case-dispositive motion because granting the requested

relief would destroy diversity and thus disrupt the court’s subject matter jurisdiction.

7th Circuit:

United States v. Residence Located at 218 3d Street, 622 F. Supp. 908 (D. Wis. 1985), aff’d

and remanded on other grounds, 805 F.2d 256 (7th Cir. 1986)

Although a motion for return of seized property is not a pretrial matter under § 636(b)(1), the

magistrate judge had implied authority under § 636(b)(1)(B) to issue a report and

recommendation. If the movant was subsequently indicted, the matter would be treated like

a motion to suppress.

8th Circuit:

Equal Emp’t Opportunity Comm’n v. Schwan’s Home Serv., 707 F. Supp. 2d 980 (D. Minn.

2010)

A district judge ruled that when a magistrate judge considers an application to enforce an

administrative subpoena, where there is no other pending, underlying civil action before the

court, the application should be considered a case-dispositivematter and the magistrate judge

should therefore issue a report and recommendation. [See Information Memorandum No.

318 for a more detailed summary of this case.]

9th Circuit:

United States v. Rivera-Guerrero, 377 F.3d 1064 (9th Cir. 2004)

A magistrate judge did not have authority under 28 U.S.C. § 636(b)(1)(A) to issue a final

order for the involuntary medication of a defendant to render him competent to stand trial. 

The district judge should have treated the magistrate judge’s forced medication order as

proposed findings and recommendations subject to de novo review. 

Clark v. Inspector General of the U.S. Dep’t of Agriculture, 944 F. Supp. 818 (D. Or. 1996)

The district judge adopted the magistrate judge’s report recommending dismissal of a

challenge to an administrative subpoena. The court reviewed the legal conclusions de novo

and noted that because no objections were filed, the factual findings did not require de novo

review.

December 2013 26 INVENTORY
Boston Safe Deposit & Trust Co. v. Motoryacht Dulcinea, 5 F.3d 535 (9th Cir. 1993) (Table

disposition -- text available on Westlaw) 

The denial of a motion to file a counterclaim was a case-dispositive matter under

§ 636(b)(1)(B) requiring submission of proposed findings of fact and recommended

disposition by the magistrate judge, not a final order.

7. Motions to Transfer Juveniles to Adult Prosecution

1st Circuit:

United States v. C.J.T.G., 913 F. Supp. 63 (D.P.R. 1994)

The district judge adopted the magistrate judge’s recommendation to deny the motion to

transfer the juvenile to adult status, applying a de novo standard of review to the magistrate

judge’slegal conclusion and to the specific factual finding to which the government objected.

2d Circuit:

United States v. Juvenile Male No. 1, 47 F.3d 68 (2d Cir. 1995)

The court of appeals held that the district court did not abuse its discretion in denying a

motion to transfer a juvenile defendant to adult status for prosecution, where the district

judge had rejected the magistrate judge’s report recommending the transfer of the juvenile

to adult status. 

5th Circuit:

United States v. Bilbo, 19 F.3d 912 (5th Cir. 1994)

The court of appeals affirmed the district court’s order to transfer a juvenile defendant to

adult status. The district judge had adopted the magistrate judge’s proposed findings on five

of the six factors that must be considered under 18 U.S.C. § 5032, held an evidentiary

hearing on the sixth factor, and rejected the magistrate judge’s recommendation not to

transfer, finding that five of the six factors favored transfer.

United States v. M.H., 901 F. Supp. 1211 (E.D. Tex. 1995)

After conducting de novo review of the record, the district judge overruled the defendant’s

objections and adopted the magistrate judge’s report and recommendation granting the

government’s motion to transfer the juvenile defendant to adult status for prosecution.

11th Circuit:

United States v. Wellington, 102 F.3d 499 (11th Cir. 1996)

The district court’s decision adopting the magistrate judge’s report and recommendation was

reviewed for abuse of discretion and affirmed by the court of appeals.

8. Motions to Transfer Venue

Courts disagree over whether orders transferring venue are dispositive of a claim or defense before

the court. See Section 4, supra, for additional opinions on this issue.

December 2013 27 INVENTORY
1st Circuit:

United States v. One Parcel of Real Property with Bldgs., Etc., 131 F.R.D. 27 (D.R.I. 1990)

Without discussing his authority to do so, a magistrate judge issued a report and

recommendation on a motion to change venue. (Opinion by a magistrate judge.)

6th Circuit:

Payton v. Saginaw County Jail, 743 F. Supp. 2d 691 (E.D. Mich. 2010)

Motion to transfer venue between divisions within the district court was a case-dispositive

matter under 28 U.S.C. § 636(b)(1)(A), and therefore a magistrate judge did not have

authority to issue a final order on the defendant’s venue transfer motion. [See Information

Memorandum No. 318 for a more detailed summary of this case.]

9. Motions for Sanctions

Courts disagree over whether imposition of sanctions is dispositive of a claim or defense before the

court. See Section 4, supra, for additional opinions on this issue.

1st Circuit:

Phinney v. Wentworth Douglas Hosp., 199 F.3d 1 (1st Cir. 1999)

Although a motion for sanctions premised on an alleged discoveryviolation ordinarilyshould

be classified as non-case-dispositive, a departure from this rule may be necessary when a

magistrate judge suggests the imposition of a sanction that fully disposes of a claim or

defense.

Unlimited Holdings v. Bertram Yacht, 2008 WL 4642191 (D.V.I. 2008)

The district judge vacated a magistrate judge’s order denying a motion for the sanction of

dismissal with prejudice, since the motion functioned as a motion to dismiss on which the

magistrate judge lacked jurisdiction to rule.

Plante v. Fleet National Bank, 978 F. Supp. 59 (D.R.I. 1997)

In the absence of circuit court precedent, the district court opined that a Rule 11 motion for

sanctions, especially in a post-dismissal context, was properly characterized as a casedispositive motion subject to de novo review. In any event, de novo review of the magistrate

judge’s report and recommendation was proper where the parties had not objected to the

treatment of the motion as a case-dispositive matter.

Yang v. Brown University, 149 F.R.D. 440 (D.R.I. 1993)

Although motions for sanctions pursuant to Rule 37 are usually considered non-casedispositive matters under § 636(b)(1)(A), the magistrate judge’s order excluding the

testimony of the plaintiff’s expert witness in this case crossed the line from non-casedispositive to case-dispositive decision-making and was “tantamount to an involuntary

dismissal.” The district judge therefore treated the sanction imposed as a recommendation,

reviewed it de novo, and modified the ruling to impose a less severe sanction.

December 2013 28 INVENTORY
2d Circuit:

Kiobel v. Millson, 592 F.3d 78 (2d Cir.2010)

Three judges on a panel of the Second Circuit issued separate concurring opinions setting

forth disparate views on whether a magistrate judge has authority to order sanctions under

Fed. R. Civ. P. 11. One judge issued an opinion concluding that magistrate judges do not

have authority under the Federal Magistrates Act, 28 U.S.C. § 636, to issue a dispositive

sanction order under Rule 11, while another judge issued an opinion concluding that

magistrate judges do have this authority under the Act. A third judge declined to endorse

either view in light of the statute’s ambiguity. [See Information Memorandum No. 315 for

a more detailed summary of this case.]

Friends of Animals, Inc. v. United States Surgical Corp., 131 F.3d 332 (2d Cir. 1997)

The court of appeals found no abuse of discretion in the district court’s adoption of the

magistrate judge’s recommendation that the action be dismissed under Rule 37(b) for

repeated violations of discovery orders.

Leiching v. Consolidated Rail Corp., 1997 WL 135930 (N.D.N.Y. 1997)

The district judge adopted the magistrate judge’s report recommending the imposition of

monetarysanctions against counsel under 28 U.S.C. § 1927 and the court’s inherent authority

to sanction the dilatory conduct of defense counsel during pretrial discovery. 

Hall v. Flynn, 829 F. Supp. 1401 (N.D.N.Y. 1993)

The district judge adopted the magistrate judge’s report recommending dismissal of the pro

se plaintiff’s action due to the plaintiff’s “continuing and contemptuous refusal to comply

with court procedures and orders and in light of the apparent frivolous nature of the

complaint....”

3d Circuit:

Nyenekor v. Kletches, 1996 WL 189920 (E.D. Pa. 1996)

The district judge reviewed de novo and adopted themagistrate judge’s report recommending

dismissal of the prisoner plaintiff’s claims under Fed. R. Civ P. 16, Fed. R. Civ. P. 37, and

Fed. R. Civ. P. 41.

Derzack v. County of Allegheny, Pa., 173 F.R.D. 400 (W.D. Pa. 1996), aff’d, 118 F.3d 1575

(3d Cir. 1997) (Table disposition)

Applying the de novo standard of review, the district judge rejected the magistrate judge’s

report recommending that the plaintiff’s complaint not be dismissed for fraud upon the court.

4th Circuit:

Segal v. L.C. Hohne Contractors, Inc., 303 F. Supp. 2d 790 (S.D.W.Va. 2004)

When a party brings a motion for sanctions, the sanction chosen by the magistrate judge,

rather than the sanction sought by the party, determines which section of Fed. R. Civ. P. 72

applies. The district judge therefore applied the “clear error” standard when it reviewed the

magistrate judge’s denial of a motion requesting the sanction of default judgment.

December 2013 29 INVENTORY
6th Circuit:

Bennett v. General Caster Service of N. Gorden Co., Inc., 976 F.2d 995 (6th Cir. 1992)

The magistrate judge was without authority to enter a final order awarding sanctions under

Rule 11, since the purported order was dispositive of a claim for money damages. The order

therefore was not a final, appealable decision of the district court.

 7th Circuit:

Patterson v. Rubin, 89 F.3d 838 (7th Cir.) (Table Disposition -- text available on Westlaw),

cert. denied, 519 U.S. 897 (1996)

A magistrate judge recommended dismissal of the plaintiff’s complaint under Fed. R. Civ.

P. 41 for failure to prosecute claims.

Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856 (7th Cir.), cert. denied, 519

U.S. 932 (1996)

The fact that an attorney was the subject of a request for sanctions did not change the fact

that resolution of a sanctions motion is a case-dispositive matter that should only be referred

to a magistrate judge under § 636(b)(1)(B) or § 636(b)(3), where the district judge reviews

the magistrate judge’s report and recommendations de novo.

Alpern v. Lieb, 38 F.3d 933 (7th Cir. 1994)

The magistrate judge had no independent authority to award sanctions under Fed. R. Civ. P.

11. Because the parties did not consent to final disposition of the case before the magistrate

judge, and a motion for sanctions under Rule 11 after a case has been dismissed on the merits

is not a “pretrial matter,” the magistrate judge had no authority to enter a sanction order. A

district judge may refer a sanctions matter to a magistrate judge for a report and

recommendation under § 636(b)(1)(B), but the magistrate judge may not make a decision

with independent effect.

Cleversafe, Inc. v. Amplidata, Inc., 287 F.R.D. 424 (N.D. Ill. 2012), 

A magistrate judge concluded that a motion for monetary sanctions under Fed. R. Civ. P. 37

is a case-dispositive matter under the Seventh Circuit precedent, which therefore required

him to prepare a report and recommendation. Magistrate judge noted that cases in numerous

other circuits have held that Rule 37 sanction motions are non-case-dispositive matters. [See

Information Memorandum No. 326 for a more detailed summary of this case.]

8th Circuit:

Avionic Co. v. General Dynamics Corp., 957 F.2d 555 (8th Cir. 1992)

The district judge adopted the magistrate judge’s report and recommendation to dismiss the

plaintiff’s case as a sanction under Fed. R. Civ. P. 37 for failure to cooperate in discovery. 

The motion was treated as a case-dispositive matter under § 636(b)(1)(B). 

December 2013 30 INVENTORY
9th Circuit:

Computer Task Group v. Brotby, 364 F.3d 1112 (9th Cir. 2004)

After imposing monetary sanctions as a non-case-dispositive matter, the magistrate judge

recommended granting a motion for sanctions that would terminate the case. The

recommendation was adopted by the district judge and affirmed on appeal.

10th Circuit:

Jones v. Thompson, 996 F.2d 261 (10th Cir. 1993)

The court of appeals affirmed the district court’s adoption of the magistrate judge’s

recommendation to impose sanctions on recalcitrant litigants, including dismissal of the 

action upon the parties’ further failure to comply with the court’s order.

Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458 (10th Cir. 1988)

A motion to strike pleadings with prejudice as a sanction under Fed. R. Civ. P. 37 was

treated as a case-dispositive “motion to involuntarily dismiss an action” under

§ 636(b)(1)(B).

Schwartzman, Inc. v. AFC Industries, Inc., 167 F.R.D. 694 (D.N.M. 1996)

The district judge reviewed de novo the magistrate judge’s recommendation that evidentiary

sanctions be imposed on the Department of Justice for failure to participate in good faith in

a mandatory settlement conference. 

Donovan v. Gingerbread House, Inc., 106 F.R.D. 57 (D. Colo. 1985), rev’d and remanded

on other grounds, 907 F.2d 115 (10th Cir. 1989)

A magistrate judge does not have authority to dismiss an action involuntarily as a discovery

sanction under Fed. R. Civ. P. 37. The district judge treated the magistrate judge’s order as

a report and recommendation subject to de novo determination.

10. Motions Relating to Default Judgment

5th Circuit:

McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 925 F.2d 853 (5th Cir. 1991)

A magistrate judge is not authorized by § 636(b)(1) to hear a Fed. R. Civ. P. 60 motion to

vacate a judgment, although a magistrate judge is authorized to do so under § 636(b)(3), or

under § 636(c) with the parties’ consent.

6th Circuit:

Victoria’s Secret Stores v. Artco Equipment Co., 194 F. Supp. 2d 704 (S.D. Ohio 2002)

A motion for default judgment is a case-dispositive matter because it is substantially similar

to several of the excepted motions listed in § 636(b)(1)(A).

December 2013 31 INVENTORY
7th Circuit:

Sims v. EGA Products, Inc., 475 F.3d 865 (7th Cir. 2007)

A district judge granted defendant’s motion to set aside a default judgment, contrary to the

magistrate judge’s recommendation, noting that it was unlikely that the magistrate judge

could have resolved the issue under Fed. R. Civ. P. 72, since default concludes the merits of

the case. In any event, a district court is not obliged to give magistrate judges the maximum

authority such non–Article III officers may wield.

D.C. Circuit:

Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006)

Neitherthe parties’ due process rights nor their rights to Article III adjudication were violated

where a magistrate judge was appointed under § 636(b)(1)(B) to conduct an evidentiary

hearing and submit a report and recommendation on a motion for default judgment.

11. Motions to Intervene

5th Circuit:

Mississippi Power & Light Co. v. United Gas Pipe Line Co., 621 F. Supp. 718 (S.D. Miss.

1985)

The denial of a third party’s motion to intervene (although allowing it amicus curiae status)

was equivalent to involuntary dismissal. Although the original suit remained for

adjudication, the magistrate judge was without authority to issue a final decision on such a

case-dispositive matter.

12. Motions to Remand 

Courts disagree over whether remand orders are dispositive of a claim or defense before the court. 

See Section 4, supra, for additional opinions on this issue.

1st Circuit:

Societa Anonima Lucchese Olii E. Vii v. Catania Spagna Corp., 440 F. Supp. 461 (D. Mass.

1977)

Although a motion to remand the case to state court could be referred to a magistrate judge

under § 636(b)(1)(A), the district court had discretion to refer the matter under

§ 636(b)(1)(B) for a report and recommendation.

2d Circuit:

Williams v. Beemiller, Inc., 527 F.3d 259 (2d Cir. 2008)

A remand order under 28 U.S.C. § 1447(c) is indistinguishable from a motion to dismiss

based on lack of subject matter jurisdiction for the purpose of 28 U.S.C.§ 636(b)(1)(A), and

thus should be ruled on by a magistrate judge by a report and recommendation subject to de

novo review.

December 2013 32 INVENTORY
3d Circuit:

In re U.S. Healthcare, 159 F.3d 142 (3d Cir. 1998)

The court of appeals issued a writ of mandamus to the magistrate judge directing him to

vacate a remand order which, as a case-dispositive order, was beyond the magistrate judge’s

authority.

Giangola v. Walt Disney World Co., 753 F. Supp. 148 (D.N.J. 1990)

A magistrate judge’s order remanding the case to state court was equivalent to a dismissal

and was thus a case-dispositive matter. The magistrate judge thus exceeded his authority

under § 636(b)(1)(B) by ordering remand sua sponte. 

4th Circuit:

Long v. Lockheed Missiles and Space Co., Inc., 783 F. Supp. 249 (D.S.C. 1992)

A motion to remand the case to state court was a case-dispositive motion, requiring the

magistrate judge to prepare a report and recommendation subject to de novo determination

by the district judge.

5th Circuit:

Vaquillas Ranch Co., Ltd. v. Texaco Exploration and Production, Inc., 844 F. Supp. 1156

(S.D. Tex. 1994)

A motion to remand is not a case-dispositive matter since it is not listed in § 636(b)(1)(A).

6th Circuit:

Vogel v. U.S. Office Products Co., 258 F.3d 509 (6th Cir. 2001)

Motions to remand are case-dispositive matters, and a magistrate judge is therefore without

authority to issue a final order of remand without the parties’ consent. 

National City Bank v. Aronson, 474 F. Supp. 2d 925 (S.D. Ohio 2007)

Sixth Circuit precedent mandated treatment of a motion to remand as a case-dispositive

matter under § 636(b)(1)(B).

8th Circuit:

Schrempp v. Rocky Mountain Holding Co., L.L.C., 2007 WL 570406 (D. Neb. 2007)

In light of the split in court decisions over whether a magistrate judge has authority to rule

on a motion to remand, the magistrate judge entered a report and recommendation on the

matter.

10th Circuit:

First Union Mortgage Corp. v. Smith, 229 F.3d 992 (10th Cir. 2000)

An order to remand a case to state court is a case-dispositive matter, and therefore a

magistrate judge did not have authority to issue a final remand order without the parties’

consent.

December 2013 33 INVENTORY
13. Attorney’s Fees

Rule 54(d)(2)(D) of the Federal Rules of Civil Procedure states in relevant part:

[T]he court may refer issues concerning the value of [attorney’s fees] to a special

master under Rule 53 without regard to the limitations of Rule 53(a)(1), and may

refer a motion for attorney’s fees to a magistrate judge under Rule 72(b) as if it were

a dispositive pretrial matter.

The 1993 revision of Fed. R. Civ. P. 54 resolved the issue of whether motions for attorney’s fees

should be treated as case-dispositive or non-case-dispositive matters. Magistrate judges must now

hear motions for attorney’s fees as case-dispositive matters under Rule 54 and Rule 72(b), subject

to de novo determination by the district court. They may also hearsuch motions as special masters,

with their recommendation subject to the de novo standard of review. For a further discussion of

the service of magistrate judges as special masters under § 636(b)(2), see Section 6, infra.

1st Circuit:

In re Holocaust Victim Assets Litigation, 528 F. Supp. 2d 109 (E.D.N.Y. 2007)

Although the objections had been withdrawn, the district judge reviewed the magistrate

judge’s report and recommendation on an application for attorney’s fees de novo, in

consideration of the importance of the historic class action litigation and the court’s fiduciary

obligation to the class members.

5th Circuit:

Blair v. Sealift, 848 F. Supp. 670 (E.D. La. 1994)

The imposition of attorney’s fees post-trial, and not as a discovery sanction, was a casedispositive matter under § 636(b)(1)(B) and was therefore subject to de novo review.

6th Circuit:

Massey v. City of Ferndale, 7 F.3d 506 (6th Cir. 1993)

Motions for sanctions, fees, and costs are not to be determined by a magistrate judge because

they are dispositive of claims.

Weatherby v. Sec’y of Health & Human Services, 654 F. Supp. 96 (E.D. Mich. 1987)

A motion for attorney’s fees under 28 U.S.C. § 2412 may not be referred to a magistrate

judge under § 636(b)(1)(A).

7th Circuit:

Rajaratnam v. Moyer, 47 F.3d 922 (7th Cir. 1995)

A magistrate judge did not have authority to enter a final order on a motion for attorney’s

fees under the Equal Access to Justice Act.

December 2013 34 INVENTORY
9th Circuit:

Estate of Connors by Meredith v. O’Connor, 6 F.3d 656 (9th Cir. 1993), cert. denied, 510

U.S. 1045 (1994)

A magistrate judge lacked authority to dispose of a motion for attorney’s fees because it was

neither pretrial nor a non-case-dispositive matter.

Bernardi v. Yeutter, 951 F.2d 971 (9th Cir. 1991)

A magistrate judge could make proposed findings of fact and a recommendation that

attorney’s fees be awarded against a defendant found to be in contempt of the district court’s

consent decree.

 

10th Circuit:

Insurance Co. of North America v. Bath, 968 F.2d 20 (10th Cir. 1992) (Table disposition --

text available on Westlaw)

A motion for attorney’s fees, even if post-judgment, is a case-dispositive matter triggering

the procedures and standard of review under § 636(b)(1)(B). 

11th Circuit:

In re Holywell Corp., 967 F.2d 568 (11th Cir. 1992)

A motion to calculate an award of attorney’s fees, referred to a magistrate judge after a

district judge ordered a party held in contempt in a bankruptcy proceeding, was treated as a

case-dispositive matter under § 636(b)(1)(B).

D.C. Circuit:

David v. District of Columbia, 252 F.R.D. 56 (D.D.C. 2008)

A magistrate judge’s order granting attorney’s fees was void because the magistrate judge

did not have jurisdiction under Fed.R.Civ.P. 72 to issue it in the form of a final order as

opposed to a recommendation.

14. Motions to Enforce Settlement

5th Circuit:

Schommer v. McKinney Towing, 1991 WL 68468 (E.D. La. 1991), aff’d, 952 F.2d 400 (7th

Cir. 1992)

A motion to enforce a settlement agreement is a case-dispositive matter requiring de novo

determination under § 636(b)(1)(B).

7th Circuit:

Schaap v. Executive Industries, Inc., 760 F. Supp. 725 (N.D. Ill. 1991)

The district judge referred a motion to enforce a settlement agreement to a magistrate judge

under § 636(b)(1)(B). (No discussion of magistrate judge authority.)

December 2013 35 INVENTORY
D.C. Circuit:

Page v. Pension Benefit Guaranty Corp., 498 F. Supp. 2d 223 (D.D.C. 2007)

The district judge affirmed the magistrate judge’s denial of a motion to close out a settlement

agreement under the de novo standard without deciding whether the motion was a casedispositive matter or a non-case-dispositive matter.

15. Stays of Proceedings

9th Circuit:

Reynaga v. Cammisa, 971 F.2d 414 (9th Cir. 1992)

A magistrate judge did not have authority to issue a “final” order staying a prisoner § 1983

case pending exhaustion of state remedies. The magistrate judge’s authority was limited to

submission of proposed findings of fact and a recommendation concerning disposition of the

motion, subject to de novo determination by the district judge.

16. Postjudgment Motions for Contempt

9th Circuit:

Bernardi v. Yeutter, 951 F.2d 971 (9th Cir. 1991)

The district court could refer a postjudgment motion to determine if the defendant was acting

in contempt of a consent decree in a class action to a magistrate judge under § 636(b)(1)(B),

subject to de novo determination by the district judge. 

17. Equitable Allocation Proceedings

3d Circuit:

Beazer East, Inc. v. The Mead Corp., 412 F.3d 429 (3d Cir. 2005), cert. denied, 546 U.S.

1091 (2006)

The district court improperly referred an equitable allocation proceeding in a CERCLA case

to a magistrate judge for an evidentiary hearing and preparation of a report and

recommendation. The magistrate judge did not facilitate the district court’s ultimate

adjudicatory function — he assumed that function, and therefore the equitable allocation

proceeding conducted by the magistrate judge was not a “pretrial matter” under 28 U.S.C.

§ 636(b)(1). 

18. Petition Under the Hague Convention on the Civil Aspects of International

Child Abduction

9th Circuit:

Holder v. Holder, 392 F.3d 1009 (9th Cir. 2004)

The referral of a Hague Convention claim to a magistrate judge for a report and

recommendation was firmly rooted in statutory authority and facilitated the expeditious

resolution of claims mandated by the Convention.

December 2013 36 INVENTORY
11th Circuit:

Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001)

A magistrate judge’s report and recommendation on a Hague Convention claim was adopted

in its entirety by the district court. (No discussion of magistrate judge authority.)

19. Expert Testimony

5th Circuit:

Saudi v. S/T Marine Atlantic, 159 F. Supp. 2d 512 (S.D. Tex. 2001)

The district judge applied the de novo standard of review to a magistrate judge’s

memorandum and recommendation on a motion to strike expert witnesses, where the

affected party filed timely objections to the magistrate judge’s ruling.

6th Circuit:

United States v. Pollard, 128 F. Supp. 2d 1104 (E.D. Tenn. 2001)

The district judge accepted a magistrate judge’s report and recommendation allowing the

testimony of an expert witness.

11th Circuit:

United States v. Henderson, 409 F.3d 1293 (11th Cir. 2005)

The district court did not abuse its discretion when it adopted the magistrate judge’s report

and recommendation excluding proffered polygraph evidence.

20. Motions for Leave to Amend

Courts disagree over whether orders on motions for leave to amend are dispositive of a claim or

defense before the court. See Section 4, supra, for additional opinions on this issue.

1st Circuit:

Allendale Mut. Ins. Co. v. Rutherford, 178 F.R.D. 1 (D. Me. 1998)

De novo review of the defendant’s motion to amend her answer to include an affirmative

defense based on the statute of limitations was appropriate because the matter was

dispositive of a defense of a party.

2d Circuit:

Mueller Co. v. U.S. Pipe & Foundry Co., 351 F. Supp. 2d 1 (D.N.H. 2005)

A magistrate judge’s denial of a motion to amend on futility grounds is subject to de novo

review.

HCC, Inc. v. R H & M Mach. Co., 39 F. Supp. 2d 317 (S.D.N.Y. 1999)

Denial of leave to amend is a case-dispositive decision at least in situations where the denial

is premised on futility.

December 2013 37 INVENTORY
10th Circuit:

Wood v. World Wide Ass’n of Specialty Programs and Schools, 2008 WL 4065622 (D. Utah

2008)

Because the record established that it would be futile to grant leave for further amendment,

the district judge considered the plaintiffs’ motion for leave to amend as a case-dispositive

motion and therefore applied a de novo standard of review.

21. Motions for Leave to File Reply Out of Time

10th Circuit:

Brockman v. Board of County Commissioners of County of Shawnee, 2008 WL 1743495 (D.

Kan. 2008)

Because denial of a motion for leave to file a reply out of time to a motion for judgment on

the pleadings would have a case-dispositive effect, the magistrate judge did not have

jurisdiction to rule on the motion; consequently, the district judge reviewed the issues in the

motion de novo.

22. Motions Under the Freedom of Information Act (FOIA)

2d Circuit:

New York v. Salazar, 701 F. Supp. 2d 224 (N.D.N.Y. 2010)

A magistrate judge held that he did not have authority to issue a final ruling on the plaintiffs’

motion to compel the production of documents from the federal government, where the

government was withholding production of the documents under provisions of the Freedom

of Information Act (FOIA), 5 U.S.C. § 552, and where the issues under FOIA constituted the

merits of two underlying causes of action in the plaintiffs’ lawsuit. [See Information

Memorandum No. 316 for a more detailed summary of this case.]

E. Other Duties

Magistrate judges are currently performing a variety of duties analogous to case-dispositive motions

in the district courts. These duties are not described in the Federal Magistrates Act, and any statutes

authorizing these duties do not specifythe involvement of magistrate judges. Although the authority

of magistrate judges to perform these duties may not have been addressed in case law, it is assumed

by the courts where magistrate judges are performing these duties that the power is derived from the

general authority of the Federal Magistrates Act and of the district court itself. This list should not

be considered all-encompassing.

The Judicial Services Office recognizes that the following duties are being referred to magistrate

judges in various districts around the country. Oftentimes, such references are made under local

rules. The duties are listed to suggest how different courts have utilized magistrate judges over the

last forty years. The Division provides this list without commenting upon the propriety of such

references.

December 2013 38 INVENTORY
@ Condemnation Proceedings

@ Pension Board Appeals (ERISA)

@ Appeals of Administrative Denials of Licenses, Certifications and Other Privileges

@ Appeals from Military Discharge Proceedings

@ INS Deportation Hearings

@ Other Appeals from Agency Action (5 U.S.C. § 702)

@ Inquests

December 2013 39 INVENTORY
§ 6. DESIGNATION AS SPECIAL MASTER UNDER 28 U.S.C. § 636(b)(2).. . . . . . . . . 2

A. In General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Consent, Notice of Designation, & Waiver of Objection to 

Designation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2. Standard of Review by District Court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

3. Appellate Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Cases Referable to Magistrate Judge As Special Master. . . . . . . . . . . . . . . . . . 6

1. Exceptional Condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2. Prisoner Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

3. Title VII Cases (42 U.S.C. § 2000e-5(f)(5)). . . . . . . . . . . . . . . . . . . . . . . . 7

4. Appellate Special Masters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. Other Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
§ 6. DESIGNATION AS SPECIAL MASTER UNDER 28 U.S.C. § 636(b)(2)

A. In General

Section 636(b)(2) governs the appointment of magistrate judges as special masters under Fed. R.

Civ. P. 53:

A judge may designate a magistrate judge to serve as a special master pursuant to the

applicable provisions of this title and the Federal Rules of Civil Procedure for the

United States district courts. A judge may designate a magistrate to serve as a special

master in any civil case, upon consent of the parties, without regard to the provisions

of rule 53(b) of the Federal Rules of Civil Procedure for the United States district

courts.

Rule 53(a)(1)(B)(i) provides that "some exceptional condition" must be shown before a master may

be appointed. If the parties consent to appointment of a magistrate judge as special master, however,

a showing of exceptional conditions is not required. Rule 53(h), as amended in 2003 and 2007,

further states:

Appointing a Magistrate Judge. A magistrate judge is subject to this rule only

when the order referring a matter to the magistrate judge states that the reference is

made under this rule.

1. Consent, Notice of Designation, & Waiver of Objection to Designation

2d Circuit:

Magnaleasing, Inc. v. Staten Island Mall, 428 F. Supp. 1039 (S.D.N.Y.), aff'd, 563 F.2d 567

(2d Cir. 1977)

An objection to referral of a case to a special master must be made to the trial judge at or

before the time of the referral, and not to the special master.

3d Circuit:

Beazer East, Inc v. The Mead Corp., 412 F.3d 429 (3d Cir. 2005), cert. denied, 546 U.S.

1091 (2006)

Where the appellate court concluded that the district court had improperly referred an

equitable allocation proceeding to a magistrate judge under § 636(b)(1), and the plaintiff

argued that the appellate court should re-characterize the lower court’s referral as a

designation to the magistrate judge to serve as a special master under § 636(b)(2), the Third

Circuit held that designation of a magistrate judge as a special master to conduct the

equitable allocation proceeding under the particular facts in this case without the parties’

consent would constitute an abuse of discretion. 

December 2013 2 INVENTORY
5th Circuit:

Hayes v. Foodmaker, Inc., 634 F.2d 802 (5th Cir. 1981)

Failure to make a timely objection to referral of a case to a special master constitutes a

waiver. A magistrate judge acting as a special master gave correct advice when telling a

party that objections to the referral should be made to the district judge.

Cruz v. Hauck, 515 F.2d 322 (5th Cir. 1975), cert. denied sub nom., Andrade v. Hauck, 424

U.S. 917 (1976)

A party opposed to referral of a case to a magistrate judge sitting as a special master must

object before or at the time of the referral. If this is not feasible, objection should be made

to the district judge at the earliest opportunity.

6th Circuit:

Thornton v. Jennings, 819 F.2d 153 (6th Cir. 1987)

A magistrate judge may be designated as a special master only upon a showing of

exceptional conditions under Fed. R. Civ. P. 53 or with the litigants' consent. Without either,

there is no special master reference and the district court is required to review the magistrate

judge's findings de novo.

Hawkins v. Ohio Bell Tel. Co., 93 F.R.D. 547 (S.D. Ohio 1982), aff'd, 785 F.2d 308 (6th Cir.

1986)

Where the parties did not object to the court's improper referral of trial on the merits to a

magistrate judge under § 636(b)(1)(B) and Fed. R. Civ. P. 53, the court still made a proper

§ 636(b)(2) reference and will apply the clearly erroneous standard of review.

8th Circuit:

Reiter v. Honeywell, Inc., 104 F.3d 1071 (8th Cir. 1997)

Failure to object to a special master reference of a jury trial to a magistrate judge serving as

special master in Title VII case did not constitute consent to the reference. The magistrate

judge could not conduct the jury trial without the explicit consent of the parties. (Court did

not mention authority to refer Title VII cases to magistrate judges sitting as special masters

under 42 U.S.C. § 2000e-5(f)(5).)

9th Circuit:

Spaulding v. Univ. of Washington, 740 F.2d 686 (9th Cir.), cert. denied, 469 U.S.1036 (1984)

The parties must object to a special master referral when it is made or within a reasonable

time thereafter to avoid waiver. 

10th Circuit:

Green v. Brady, 45 F.3d 439 (10th Cir. 1995) (Table disposition -- text available on

WESTLAW)

The plaintiff waived her objection to the appointment of a magistrate judge under 28 U.S.C. 

December 2013 3 INVENTORY
§ 636(b)(2) and Fed. R. Civ. P. 53 to serve as a special master in her Title VII case because

she failed to take issue with the appointment in a timely manner.

D.C. Circuit:

Wallace v. Skadden, Arps, Slate, Meagher & Flom, LLP, 362 F.3d 810 (D.C. Cir. 2004)

Where a magistrate judge, appointed as a special master with the consent of the parties,

issued a report recommending that $25,000 in legal fees and sanctions be awarded against

the plaintiff for unreasonable and vexatious filings in the case, the district court erred in

failing to provide the plaintiff with sufficient notice concerning the special master

appointment and the consequences of failing to object to the master’s report and

recommendation, thereby requiring the case to be remanded for further proceedings. 

2. Standard of Review by District Court

Before 2003, courts had disagreed on the appropriate standard for reviewing decisions bymagistrate

judges sitting as special masters. Some circuits applied the de novo review while others applied the

"clearly erroneous" standard. Federal Rules of Civil Procedure 53(f)(3) and (4), which first went into

effect in 2003 and were further amended in 2007, clarified the appropriate standards of review to be

applied to factual findings and legal conclusions made by masters appointed under the rule:

(3) Reviewing Factual Findings. The court must decide de novo all objections to

findings of fact made or recommended by a master unless the parties, with the court’s

approval, stipulate with the court’s consent that:

(A) the findings will be reviewed for clear error; or

(B) the findings of a master appointed under Rule 53(a)(1)(A) or (C) 

will be final.

(4) Reviewing Legal Conclusions. The court must decide de novo all objections to

conclusions of law made or recommended by a master.

5th Circuit:

Castillo v. Frank, 70 F.3d 382 (5th Cir. 1995)

The district court retains authority to review discovery rulings made by a magistrate judge

after the magistrate judge has been appointed to serve as a special master under Rule 53. 

These rulings are reviewed under the "clearly erroneous" or contrary to law standard. 

Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352 (5th Cir. 1980)

Fact findings by a magistrate judge sitting as a special master were final, subject to the

clearly erroneous standard of review. Legal rulings may be freely reviewed by the district

judge.

December 2013 4 INVENTORY
6thCircuit: 

Thornton v. Jennings, 819 F.2d 153 (6th Cir. 1987)

Where no exceptional conditions or litigants' consent appears in the record, the district judge

cannot apply the clearly erroneous standard of review and instead must apply the de novo

standard under § 636(b)(1)(C).

Brown v. Wesley's Quaker Maid, Inc., 771 F.2d 952 (6th Cir.1985), cert. denied, 479 U.S.

830 (1986)

The district judge committed error by reviewing the magistrate judge's Title VII decision de

novo. The clearly erroneous standard must be applied where a special master referral is

made under 42 U.S.C. § 2000e-5(f)(5).

Hawkins v. Ohio Bell Tel. Co., 93 F.R.D. 547 (S.D. Ohio 1982), aff'd, 785 F.2d 308 (6th Cir.

1986)

A special master's fact findings are reviewed under a clearly erroneous standard, but the

district judge is free to exercise independent judgment regarding legal conclusions.

9th Circuit:

Bennett v. Yoshina, 98 F. Supp. 2d 1139 (D. Hawaii 2000)

Where the plaintiffs’ motion for attorneys’ fees was referred to a magistrate judge appointed

as a special master under Rule 53, the district court declined to apply the clearly erroneous

standard of review to the magistrate judge’s report and recommendation, and acknowledged

that the district court should never act as a “mere rubber stamp” for the findings and

conclusions of a special master even under the clear error standard. 

10th Circuit:

Nat. R.R. Passenger Corp. v. Koch Industries, Inc., 701 F.2d 108 (10th Cir. 1983)

Where the special master recommended a new trial after concluding that the jury reached a

compromise verdict, the proper standard of review for the district judge is de novo

determination. 

11th Circuit:

Cooper-Houston v. Southern Railway Co., 37 F.3d 603 (11th Cir. 1994)

The district court, when reviewing a magistrate judge's findings while sitting as a special

master, is bound to defer to the magistrate judge's factual findings unless they are found to

be clearly erroneous. 

December 2013 5 INVENTORY
3. Appellate Review

5th Circuit:

Trufant v. Autocon, Inc., 729 F.2d 308 (5th Cir. 1984)

The court of appeals has no jurisdiction over a magistrate judge's findings made while sitting

as a special master where the parties did not consent and the district judge did not issue a

final order in the case.

7th Circuit: 

Provident Bank v. Manor Steel Corp., 882 F.2d 258 (7th Cir. 1989)

A party's failure to appeal the district judge's referral of the case to a special master

constitutes waiver of the issue before the court of appeals. A failure to appeal issues decided

by the special master to the district judge also waives appellate review.

9th Circuit:

Alaniz v. California Processors, 690 F.2d 717 (9th Cir. 1982), appeal after remand, 785 F.2d

1412 (9th Cir. 1986)

A magistrate judge's decision when sitting as a special master under § 636(b)(2) is not a final

decision of the district court and cannot be appealed directly to the court of appeals. The

parties' consent to referral of the case to the special master does not render the magistrate

judge's order a final order under the civil consent provisions of § 636(c).

10th Circuit:

Oliver v. Muskogee Regional Medical Center, 931 F.2d 900 (10th Cir. 1991) (Table

disposition-- text available on WESTLAW)

In cases referred to a magistrate judge sitting as a special master under § 636(b)(2) with the

parties' consent, the appellate court reviews the magistrate judge's summary judgment order

de novo. 

B. Cases Referable to Magistrate Judge As Special Master

1. Exceptional Condition

Absent the consent of the parties, Fed. R. Civ. P. 53, amended in 2003 and 2007, provides that the

district court may only appoint a master in a civil case “if appointment is warranted by: (i) some

exceptional condition; or (ii) the need to perform an accounting or resolve a difficult computation

of damages.” Subsection C of Rule 53(a)(1) further provides that a master may only be appointed

to “address pretrial and posttrial matters that cannot be effectively and timely addressed by an

available district judge or magistrate judge of the district.” 

December 2013 6 INVENTORY
2d Circuit:

Magnaleasing, Inc. v. Staten Island Mall, 428 F. Supp. 1039 (S.D.N.Y.), aff'd, 563 F.2d 567

(2d Cir. 1977)

The referral of a non-jury action to a magistrate judge sitting as a special master under

§ 636(b)(2) and Fed. R. Civ. P. 53 was appropriate because it involved accounting and the

complex computation of damages.

3d Circuit:

Prudential Ins. Co. of America v. United States Gypsum Co., 991 F.2d 1080 (3d Cir1993)

Where a magistrate judge had been performing pretrial case management duties in a

complex, multi-party asbestos case for several years, the appointment of special master to

hear the case over the parties' objections was not justified under the "exceptional condition"

standard of Fed. R. Civ. P. 53. Congressional enactment of the Federal Magistrates Act

suggests that the appointment of special masters under Fed. R. Civ. P. 53 should be

disfavored and that the "exceptional condition" inquiry of Rule 53 should be made in light

of the availability of magistrate judges to aid the district courts in handling pretrial matters. 

6th Circuit:

McCormick v. Western Kentucky Navigation, Inc., 993 F.2d 568 (6th Cir. 1993)

"Docket congestion" and judicial vacancies in the district court did not constitute

"exceptional conditions" under Fed. R. Civ, P. 53(b) justifying the appointment of a

magistrate judge as a special master in a maritime tort case without the parties’ consent.

2. Prisoner Cases

2d Circuit:

McCarthy v. Bronson, 906 F.2d 835 (2d Cir. 1990), aff'd, 500 U.S. 136 (1991)

A straightforward § 1983 prisoner action did not meet the "exceptional condition"

requirement of Fed. R. Civ. P. 53, therefore the court was not allowed to refer the case to a

magistrate judge sitting as a special master without the parties’ consent.

6th Circuit:

Roland v. Johnson, 856 F.2d 764 (6th Cir. 1988)

The district court may not avoid the de novo standard of review imposed by § 636(b)(1)(B)

by referring a prisoner case to a magistrate judge sitting as a special master.

3. Title VII Cases (42 U.S.C. § 2000e-5(f)(5))

An exception to the strict appointment requirements of Fed. R. Civ. P. 53 is set forth in 42 U.S.C.

§ 2000e-5(f)(5). A master may be appointed under Rule 53 in a Title VII case without a showing

of some exceptional condition “[i]f such judge has not scheduled the case for trial within one

hundred and twenty days after the issue has been joined.” A small number of courts have adopted

December 2013 7 INVENTORY
local rules and procedures referring Title VII cases automatically to magistrate judges sitting as

masters under Rule 53 pursuant to this provision.

5th Circuit:

Gonzalez v. Carlin, 907 F.2d 573 (5th Cir. 1990)

Neither the exceptional condition requirement of Fed. R. Civ. P. 53 nor the parties' consent

is required for referral of a Title VII case to a magistrate judge as a special master.

6th Circuit:

Day v. Wayne County Bd. of Auditors, 749 F.2d 1199 (6th Cir. 1984)

The referral of Title VII cases to magistrate judges sitting as special masters does not conflict

with the Federal Magistrates Act.

7th Circuit:

Morse v. Marsh, 656 F. Supp. 939 (N.D. Ill. 1987)

The limited referral of a Title VII case to a magistrate judge does not require the parties'

consent. This referral did not violate Article III. 

8th Circuit:

Reiter v. Honeywell, Inc., 104 F.3d 1071 (8th Cir. 1997)

A magistrate judge did not have authority under 28 U.S.C. § 636(b)(2) to conduct a jury trial

without the parties' consent while presiding as a special master in a Title VII case (the court

did not mention authority to refer Title VII cases to magistrate judges sitting as special

masters under 42 U.S.C. § 2000e-5(f)(5)). 

9th Circuit:

White v. General Services Admin., 652 F.2d 913 (9th Cir. 1981)

The language in 42 U.S.C. § 2000e-5(f)(5) that permits the referral of a Title VII case to a

magistrate judge as a special master where the district judge "has not scheduled the case for

trial within 120 days after the issue has been joined" did not bar a special master referral

made six weeks before the government filed its motion for summary judgment. 

11th Circuit:

Smith v. Beverly Health and Rehabilitation Services, Inc., 978 F. Supp. 1116 (N.D. Ga.

1997)

The court upheld its local rule and operating procedure whereby all Title VII cases filed in

particular court divisions were referred at the time of filing to “full time magistrates under

the authority of 42 U.S.C. § 2000e-5(f)(5) who shall, acting as special masters, hear and

decide such cases in their entirety.” 

Richardson v. Bedford Place Housing Phase I Associates, 855 F. Supp. 366 (N.D. Ga. 1994)

A Title VII case may be referred to a magistrate judge serving as a special master even

though no exceptional condition exists and the parties have not consented. Although the 

December 2013 8 INVENTORY
magistrate judge erred in issuing an "order" denying defendants' motion to dismiss for lack

of subject matter jurisdiction, the district court can treat the "order" as a special master's

report, reviewing it under the clearly erroneous standard of review. 

Parker v. Dole, 668 F. Supp. 1563 (N.D. Ga. 1987)

Because Congress intended to relax requirements of Fed. R. Civ. P. 53 in Title VII cases;

there is no conflict with the Federal Magistrates Act.

4. Appellate Special Masters

Magistrate judges are occasionally appointed by courts of appeals to serve as special masters in

contempt proceedings that arise in the appellate court. Courts of appeals have upheld such

appointments by appellate courts under the Federal Magistrates Act and Fed. R. Civ. P. 53, as well

as the general authority of the court of appeals to appoint masters under Fed. R. App. P. 48. 

7th Circuit:

In re Bagdade, 334 F.3d 568 (7th Cir. 2003)

The court of appeals accepted a report and recommendation of a magistrate judge presiding

as an appellate special master, which concluded that there was sufficient evidence to

establish that the attorney in question had engaged in the unauthorized practice of law and

had violated various circuit rules by acting as lead counsel and arguing appeals in two

separate cases without being admitted to the circuit's bar, thereby justifying the imposition

of significant disciplinary penalties against the attorney. 

Reich v. Sea Sprite Boat Co., Inc., 50 F.3d 413 (7th Cir. 1995)

A magistrate judge presiding as an appellate special master had the authority to recommend 

significant civil sanctions against parties that had refused to complywith the appellate court's

enforcement orders.

9th Circuit:

NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410 (9th Cir. 1994)

Although the appellate court had authority to appoint a magistrate judge to serve as a special

master in a contempt proceeding in the appellate court under the Federal Magistrates Act, 

the magistrate judge did not have authority to impose criminal contempt penalties without

the parties' consent to the magistrate judge's criminal jurisdiction. 

C. Other Duties

Magistrate judges currently perform a variety of duties analogous to special master-type duties for

the district courts. These duties are not described in the Federal Magistrates Act, and any statutes

authorizing these duties do not specify the involvement of magistrate judges. The authority of

magistrate judges to perform these duties has not been addressed in case law, but it is assumed by

the courts where magistrate judges are performing these duties to be derived from the general

December 2013 9 INVENTORY
authority of the Federal Magistrates Act and of the district court itself. This list should not be

considered all-encompassing.

The Judicial Services Office recognizes that the following duties are referred to magistrate judges

in various districts around the country. Such referrals are often made under local rules. The duties

are listed to suggest how different courts have utilized magistrate judges over the past forty years. 

@ Condemnation Proceedings

@ Court Employee Grievance Proceedings

December 2013 10 INVENTORY
§ 7. ADDITIONAL DUTIES UNDER 28 U.S.C. § 636(b)(3) 

A. In General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Authority of Magistrate Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2. Procedural Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3. Standard of Review & Procedures for Review. . . . . . . . . . . . . . . . . . . . . . 8

4. Non-Consensual Referral of Proceedings to Magistrate Judges. . . . . . . . 10

5. Bankruptcy Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. Pretrial and Trial Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. Grand Jury Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2. Arraignments in Felony Cases [Fed. R. Crim. P. 10 &, 11]. . . . . . . . . . . 13

3. Acceptance of Guilty Pleas in Felony Cases. . . . . . . . . . . . . . . . . . . . . . . 14

4. Sentencing Hearing in Felony Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

5. Pretrial Evidentiary Hearings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

6. Government Applications for Electronic Eavesdropping Orders. . . . . . . 17

7. Other Pretrial & Trial Duties in Criminal and 

Administrative Proceedings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

8. Prisoner Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

9. In Forma Pauperis Determination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

10. Alternative Dispute Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

C. Duties and Proceedings Involving Juries.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1. Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2. Hearing Closing Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

3. Presiding Over Jury Deliberation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

4. Instructing Jury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

5. Polling Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

6. Accepting Jury's Verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

7. Dismissing Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

D. Post-Judgment Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

1. Post-Judgment Dispute Among Creditors. . . . . . . . . . . . . . . . . . . . . . . . . 26

2. Garnishment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

3. Proceedings in Aid of Execution of Judgment. . . . . . . . . . . . . . . . . . . . . 27

4. Default Judgment Proceedings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

5. Motions to Vacate Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

6. Revival of Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

7. Expungement of Arrest Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

8. Revocation of Probation and Supervised Release. . . . . . . . . . . . . . . . . . . 30

9. Habeas Corpus Petitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

10. Post-Verdict Petition for Attorney's Fees & Award of Expenses. . . . . . . 32

11. Post-judgment Discovery Dispute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

12. Post-Verdict Motion to Unseal Court Records . . . . . . . . . . . . . . . . . . . . . 33

13. Proceedings Under Federal Offenders With Mental Disease or Defect

Statute, 18 U.S.C. § 4246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

E. Other Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
§ 7. ADDITIONAL DUTIES UNDER 28 U.S.C. § 636(b)(3) 

A. In General

Section 636(b)(3) of Title 28, United States Code, states that, "[a] magistrate [judge] may be assigned

such additional duties as are not inconsistent with the Constitution and laws of the United States." 

This provision has been interpreted to permit courts to refer various duties not otherwise specified

in the Federal Magistrates Act or in other statutes to magistrate judges.

1. Authority of Magistrate Judge

A split has long existed among courts interpreting § 636(b)(3). Some courts hold that referrals under

§ 636(b)(3) are limited to procedural or administrative matters. Others have held that more

substantive duties, such as evidentiary hearings, could be referred to magistrate judges under the

section. 

This split in judicial opinion has been reflected in decisions of the Supreme Court. In Gomez v.

United States, 490 U.S. 858 (1989), the Court held that any additional duties performed under the

general authorization in the statute should bearsome reasonable relation to duties specified in the Act. 

The Court later in Peretz v. United States, 501 U.S. 923 (1991), however, construed its opinion in

Gomez narrowly, finding that the litigant's consent "significantly changes the constitutional analysis." 

The Court added: 

The generality of the category of "additional duties" indicates that Congress intended

to give federal judges significant leeway to experiment with possible improvements

in the efficiency of the judicial process that had not already been tried or even

foreseen. If Congress had intended strictly to limit these additional duties to functions

considered in the committee hearings or debates, presumably it would have included

in the statute a bill of particulars rather than a broad residuary clause. Construing this

residuary clause absent concerns about raising a constitutional issue or depriving a

defendant of an importantright, we should not foreclose constructive experiments that

are acceptable to all participants in the trial process and are consistent with the basic

purposes of the statute. Peretz, 501 U.S. at 932-33.

This view is also found expressly in the legislative history of the Federal Magistrates Act, where

Congress stated that, "placing this authorization in an entirely separate subsection emphasizes that

it is not restricted in any way by any other specific grant of authority to magistrates." S. Rep. No. 625,

94th Cong., 2d Sess. 10; H.R. Rep. No. 1609, 94th Cong., 2d Sess. 12 (1976). Congress went on to

give examples of the duties that might be referred to magistrate judges under the "additional duties"

provision:

December 2013 2 INVENTORY
Under this subsection, the district courts would remain free to experiment in the

assignment of other duties to magistrates which may not necessarily be included in the

broad category of "pretrial matters". This subsection would permit, for example, a

magistrate to review default judgments, order the exoneration or forfeiture of bonds

in criminal cases, and accept returns of jury verdicts where the trial judge is

unavailable. This subsection would also enable the court to delegate some of the more

administrative functions to a magistrate, such as the appointment of attorneys in

criminal cases and assistance in the preparation of plans to achieve prompt disposition

of cases in the court. Id.

Congress later stated that the 1979 amendments to the Federal Magistrates Act, providing magistrate

judges with civil consent authority under § 636(c), did "not affect the existing power of magistrates

in the civil or criminal pretrial area" already covered by § 636(b). H.R. Rep. No. 287, 96th Cong.,

1st Sess. 1 (1979).

Differing interpretations of § 636(b)(3) have continued since the Peretz decision. The debate

continues to focus on whether the provision limits additional duty referrals to magistrate judges to

merelyministerial and administrative duties or permits the referral of more substantive judicial duties. 

In light of the Peretz decision, many courts have focused on whether the litigant consented to the

magistrate judge's participation in duties referred under § 636(b)(3) when deciding whether the

magistrate judge's exercise of authority was proper.

1st Circuit:

Rubin v. Smith, 882 F. Supp. 212 (D.N.H. 1995)

Dicta: An insight into the breadth of "additional duties" intended to be encompassed by 

§ 636(b)(3) is revealed in the legislative history, wherein Congress noted that the provision

enables the district courts to continue innovative experimentations in the use of this judicial

officer. At the same time, placing this provision in an entirelyseparate subsection emphasizes

that it is not restricted in any way by any other specific grant of authority to magistrate judges. 

Under this subsection, the district courts remain free to experiment in the assignment of other

duties to magistrates which may not necessarily be included in the broad category of "pretrial

matters."

2d Circuit:

Denny v. Ford Motor Co., 146 F.R.D. 52 (N.D.N.Y. 1993)

Section 636(b)(3)should be interpreted broadly to permit district judges to utilize magistrate

judges in innovative ways.

December 2013 3 INVENTORY
3d Circuit: 

Beazer East, Inc v. The Mead Corp., 412 F.3d 429 (3d Cir. 2005), cert. denied, 546 U.S.

1091 (2006)

The referral of an evidentiary proceeding to allocate liability under CERCLA among various

responsible parties to a magistrate judge under § 636(b)(3) was improper. The parties' consent

or lack thereof is a key factor in deciding whether a referral is authorized under § 636(b)(3). 

Since equitable allocation is at the very core of a CERCLA contribution action, it is therefore

not a preliminary or subordinate matter that can be referred to magistrate judge under §

636(b)(3) without the parties' consent.

Government of the Virgin Islands v. Williams, 892 F.2d 305 (3d Cir. 1989), cert. denied, 495

U.S. 949 (1990)

The 1976 amendments to the Federal Magistrates Act enhanced the importance of the

additional duties clause by moving it to a separate subsection. Congress intended to promote

the magistrate judges system by providing district judges with greater flexibility to continue

innovative experiments in using magistrate judges.

5th Circuit:

United States v. Underwood, 597 F.3d 661 (5 Cir. 2010) th

A defendant’s consent to have a magistrate judge conduct a guilty plea proceeding in a felony

case under Fed. R. Crim. P. 11 and 28 U.S,C. § 636(b)(3) could be inferred from the

defendant’s conduct when he failed to object to the magistrate judge conducting the plea

colloquy. [See Information Memorandum No. 316 for a more detailed summary of this case.]

United States v. Dees, 125 F.3d 261 (5th Cir. 1997), cert. denied, 522 U.S. 1152 (1998)

A magisterial duty is a proper "additional duty" under§ 636(b)(3) if it bears some relationship

to the duties that the Act expressly assigns to magistrate judges. Even if Congress did not

anticipate the delegation of felonyguiltyplea proceedings to magistrate judges, the delegation

did not exceed the scope of magisterial authority contemplated by the Federal Magistrates

Act.

6th Circuit:

Callier v. Gray, 167 F.3d 977 (6 Cir. 1999) th

Section 636(b)(3) is a broad provision that permits the district court to refer to a magistrate

judge proceedings to determine damages in a default judgment matter. Under the

circumstances of the case at bar, such a referral falls within the Supreme Court’s reasoning

in Gomez v. United States, 490 U.S. 858 (1989) as bearing a particular relationship to the

other specified magistrate judges duties under § 636. The appellate court, however, cautions

that its interpretation of § 636(b)(3) is not to be understood as approving the wholesale

reference of claims and counterclaims for damages to magistrate judges under the provision

without the consent of all parties concerned. 

December 2013 4 INVENTORY
7th Circuit:

Olympia Hotel Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363 (7th Cir. 1990)

The location of § 636(b)(3) in the middle of § 636 rather than at the end leads the court to

doubt that it was intended to be as comprehensive a catch-all provision as its words literally

suggest.

8th Circuit:

Harris v. Folk Const. Co., 138 F.3d 365 (8th Cir. 1998)

Absent clear and unambiguous consent of the affected parties, a district judge may not

delegate, under § 636(b)(3), duties that require a final and independent determination of fact

or law by the magistrate judge. However, where a magistrate judge serves as a mere

intermediary in the performance of adjudicatory functions and is under constant and direct

supervision of an Article IIIjudge, such functions are freely assignable as "additional duties." 

Roberts v. Manson, 876 F.2d 670 (8th Cir. 1989)

The additional duties clause seems intended to apply to matters after the trial begins. There

is no valid authority in this section for a magistrate judge to conduct an evidentiary hearing

and to recommend dismissal of the case with prejudice.

United States v. Trice, 864 F.2d 1421 (8th Cir. 1988), cert. dismissed, 491 U.S. 914 (1989)

Congress did not intend to limit the additional duties provision to specific powers delegated

to magistrate judges in the past.

9th Circuit:

United States v. Colacurcio, 84 F.3d 326 (9th Cir. 1996)

A probation revocation hearing was not meant to be included as one of the duties that could

be delegated to a magistrate judge. Even assuming that a probation revocation hearing could

be considered a "subsidiarymatter,"Congress did not intend to delegate probation revocation

hearings to magistrate judges as an "additional duty" under § 636(b)(3). Even if probation

revocation hearings could be delegated to magistrate judges under §636(b)(3), defendant's

consent would still be required to eliminate the constitutional problems that arise from having

a non-Article III judge preside over a critical stage of a criminal case.

10th Circuit:

United States v. Montano, 472 F.3d 1202 (10 Cir.), cert. denied, 552 U.S. 896 (2007) th

A magistrate judge has jurisdiction under § 636(b)(3) to conduct a plea hearing and

subsequently accept a defendant’s plea where the defendant consents. Where a magistrate

judge conducted the felony guilty plea colloquy under Fed. R. Crim. P. 11 and accepted the

defendant’s guilty plea made pursuant to a plea agreement that included a provision whereby

the defendant waived her right to appeal her sentence, the waiver of appeal clause in the plea

agreement was enforceable, even though the district judge orally revoked the waiver of appeal

provision at the defendant’s sentencing hearing.

December 2013 5 INVENTORY
United States v. Ciapponi, 77 F.3d 1247 (10th Cir.), cert. denied, 517 U.S. 1215 (1996)

The court's statutory inquiry under § 636(b)(3) is whether the task referred to the magistrate

judge bears some reasonable relation to the specified duties that may be assigned to magistrate

judges under the Federal Magistrates Act.

11th Circuit:

Thomas v. Whitworth, 136 F.3d 756 (11th Cir. 1998)

Where consent is lacking, courts should be reluctant to construe § 636(b)(3) to include

responsibilities of far greater importance than the specified duties assigned to magistrate

judges under the Federal Magistrates Act. Section 636 does not permit magistrate judges,

under the guise of the "additional duties" clause, to conduct the jury selection portion of a

civil trial unless the parties have given their consent.

2. Procedural Requirements 

Neither § 636 nor the Federal Rules of Civil Procedure specify procedures for referring additional

duties to magistrate judges. In 2005, Fed. R. Crim. P. 59 was adopted which sets forth procedures

applicable to all matters referred to magistrate judges in criminal cases. Courts have often been

required to interpret what procedures should apply to referrals under § 636(b)(3) absent specific

explanatory language in the statute.

1st Circuit:

Sackall v. Heckler, 104 F.R.D. 401 (D.R.I. 1984)

The procedural scheme of the Federal Magistrates Act requires "rifle-shot" objections to be

filed to a magistrate judge's report and recommendation in a case-dispositive matter referred

under § 636(b)(3). "Blunderbuss" general objections constitute no objection at all.

2d Circuit:

United States v. Brumer, 528 F.3d 157 (2d Cir. 2008)

The procedural requirements of 28 U.S.C. § 636(b)(1), that mandate preparation of a report

and recommendation and provide defendants with a ten-day period to file written objections,

do not apply when a magistrate judge conducts a felony guilty plea proceeding with the

defendant's consent under § 636(b)(3).

5th Circuit:

McCleod, Alexander, Powel & Apffel, P.C. v. Quarles, 925 F.2d 853 (5th Cir. 1991)

A party's failure to object to a defect in referring a matter under § 636(b)(3) until after the

magistrate judge issued a report and recommendation constitutes a waiver. The district

judge's failure to mention the referral of the motion to the magistrate judge in its orderis only

a procedural error.

December 2013 6 INVENTORY
Parks v. Collins, 761 F.2d 1101 (5th Cir. 1985)

A magistrate judge did not have authority under § 636(b)(3) to decide a motion to set aside

a default judgment because there was no record that the matter was assigned to the magistrate

judge as a post-trial duty.

6th Circuit:

Brown v. Wesley's Quaker Maid, Inc., 771 F.2d 952 (6th Cir. 1985), cert. denied, 479 U.S.

830 (1986)

A Title VII discrimination case may not be referred to a magistrate judge for disposition

under § 636(b)(3), subject to de novo review. Such a referral would be contrary to

fundamental precepts of statutory construction and the legislative history of the Federal

Magistrates Act. Section 636(b)(3) applies only to procedural and administrative matters. 

7th Circuit:

American Motors Corp. v. Great American Surplus Lines Ins. 1988 WL 2788 (N.D. Ill.

1988)

Referral of a motion to compel production of documents under 28 U.S.C. § 636(b)(3) was

a clerical error or oversight. The motion should have been referred under § 636(b)(1)(A). 

The citation to the wrong section of the Federal Magistrates Act could be corrected nunc pro

tunc. 

10th Circuit:

Derringer v. Chapel, 279 Fed. Appx. 641 (10th Cir. 2008)

Where a Chapter 13 debtor in a bankruptcy appeal referred to a magistrate judge under

§ 636(b)(3) failed to file a specific objection to the magistrate judge's report and

recommendation concerning the award of punitive damages, the debtor waived his right to

appeal a $750 award of punitive damages against creditors for violating an automatic stay

in the bankruptcy proceeding, even though the debtor filed timely objections to the

magistrate judge's report and recommendation. Where the debtor was specifically notified

of the time period for filing objections and of the consequences of failing to do so, and he

nevertheless failed to file an objection regarding the award of punitive damages, the appellate

court concluded that there was no injustice in applying a firm waiver rule to debtor's appeal

of the magistrate judge's report and recommendation or the issue under § 636(b)(3). 

In re Griego, 64 F.3d 580 (10th Cir. 1995)

The magistrate judge's alleged lack of authority to hear a bankruptcy appeal under 

§ 636(b)(3) was not a jurisdictional defect; thus any objection to such authority is waived if

not raised in a timely fashion.

December 2013 7 INVENTORY
3. Standard of Review & Procedures for Review

Section 636(b)(3) does not specify the standard of review or specific procedures for review to be

applied by a district judge when reviewing a magistrate judge's decision in a matter referred under

that section. 

Supreme Court:

Peretz v. United States, 501 U.S. 923 (1991)

The omission of a standard of review in § 636(b)(3) does not alter the Court's Article III

analysis. If a defendant requests review of a magistrate judge's ruling, nothing in the statute

precludes the district judge from providing the review that the Constitution requires.

Gomez v. United States, 490 U.S. 858 (1989)

Dicta: Under § 636(b)(3), a district judge retains the power to assign to magistrate judges

unspecified additional duties "subject only to conditions of review that the court may choose

to impose." Although jury selection is comparable to a case-dispositive matter, it is not

susceptible to de novo review. The Court therefore concluded that Congress did not intend

for jury selection to be referred to magistrate judges under § 636(b)(3).

1st Circuit:

Paris v. U.S. Dept. of Housing and Urban Development, 795 F.Supp. 513 (D.R.I. 1992),

reversed on other grounds, 988 F.2d 236 (1st Cir. 1993)

A post-judgment motion for attorneys' fees may be referred to a magistrate judge under

§ 636(b)(3) for a report and recommendation subject to de novo review. 

Sackall v. Heckler, 104 F.R.D. 401 (D.R.I. 1984)

In response to a party's unfocused, general objection to the magistrate judge's report and

recommendation under § 636(b)(3), the court applies the "clearly erroneous" standard of

review to the magistrate judge's report and recommendation.

2d Circuit:

United States v. Brumer, 528 F.3d 157 (2d Cir. 2008)

Where a magistrate judge conducted the felony guilty plea proceedings with the defendants’

consent, the defendants did not have a right to be present when the district judge reviewed

the allocution transcripts and signed the orders accepting the defendants’ pleas.

United States v. Taylor, 92 F.3d 1313 (2d Cir. 1996), cert. denied, 519 U.S. 1093 (1997)

When the district court reviews the magistrate judge's felony voir dire decisions, as long as

a party whose credibility is in question has been afforded an opportunity to be heard before

the district judge on the matters decided initially by the magistrate judge, the appellate court

will afford the district judge's determination substantial deference, and it will not be

overturned unless clearly erroneous. 

December 2013 8 INVENTORY
4th Circuit:

Washington Post Co. v. Hughes, 923 F.2d 324 (4th Cir.), cert. denied, 500 U.S. 944 (1991)

Additional duties referred under § 636(b)(3) are reviewed de novo.

5th Circuit:

McCleod, Alexander, Powel & Apffel, P.C. v. Quarles, 925 F.2d 853 (5th Cir. 1991)

The referral of a motion to vacate judgment under Fed. R. Civ. P. 60 under § 636(b)(3) is

conditioned on safeguards provided by § 636(b)(1)(B), requiring the district judge to review

the magistrate judge's ruling de novo. 

7th Circuit:

Michelson v. Schor, 1996 WL 667803 (N.D. Ill. 1996)

A magistrate judge's decision under § 636(b)(3) in an action to enforce a judgment of the

bankruptcy court was subject to de novo review. Although the plaintiffs did not object to the

magistrate judge's ruling within 10 days of service, their objections were not waived because

they did not have notice from the magistrate judge of the deadline for filing objections to the

ruling under § 636(b)(3).

American Motors Corp. v. Great American Surplus Lines Ins. Co., 1988 WL 2788 (N.D. Ill.

1988)

The standard of review for a matter referred under § 636(b)(3) depends on which section of

Fed. R. Civ. P. 72 applies. The district judge should determine if referral involves a

case-dispositive or non-case-dispositive matter.

9th Circuit:

Minetti v. Port of Seattle, 152 F.3d 1113 (9th Cir.1998)

The district court did not err in refusing to permit a pro se litigant to object to a magistrate

judge’s report and recommendation that the litigant’s application to proceed in forma

pauperis be dismissed. The district judge conducted sufficient de novo review of the

magistrate judge's report and recommendation under § 636(b)(3), even though the district

judge adopted the magistrate judge's recommendation only one day after it was issued. No

ten-day period of objection exists for case-dispositive matters referred to magistrate judges

under 28 U.S.C. § 636(b)(3).

10th Circuit:

In re Griego, 64 F.3d 580 (10th Cir. 1995)

De novo review is required for referrals under either § 636(b)(3) or § 636(b)(1)(B).

Clark v. Poulton, 963 F.2d 1361 (10th Cir.), cert. denied, 506 U.S. 1014 (1992)

A prisoner civil rights action referred to a magistrate judge under § 636(b)(3) was subject to

de novo review by the district judge.

December 2013 9 INVENTORY
Pettyjohn v. Sullivan, 801 F. Supp. 503 (W.D. Okla. 1992), rev'd on other grounds sub nom.,

Pettyjohn v. Shalala, 23 F.3d 1572 (10th Cir. 1994)

A post-judgment motion for attorneys' fees was analogous to a motion under § 636(b)(1)(B)

and could be referred to a magistrate judge under § 636(b)(3) for a report and

recommendation, subject to de novo review.

11th Circuit:

Hall v. Sharpe, 812 F.2d 644 (11th Cir. 1987)

De novo review is mandated by § 636(b)(3).

4. Non-Consensual Referral of Proceedings to Magistrate Judges

Section 636(b)(3) does not require litigant consent for magistrate judges to performadditional duties. 

Several circuits have addressed the issue tangentially while discussing whether § 636(b)(3) referrals

are limited to administrative or procedural matters. The Supreme Court's Peretz decision, however,

emphasizes the importance of consent in distinguishing felonyjuryselection and matters comparable

to that duty from the referral of non-consensual "subsidiary matters" under § 636(b)(1). 

Supreme Court:

Peretz v. United States, 501 U.S. 923 (1991)

A defendant's consent to jury selection by a magistrate judge in a felony case eliminates the

Court's concern that a general statutory authorization should not lightly be read to deprive

a defendant of any important privilege.

7th Circuit:

Olympia Hotel Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363 (7th Cir. 1990)

Dicta: It might violate the Constitution to allow a magistrate judge to conduct a vital stage

of a civil trial, such as voir dire, without the parties' consent. 

8th Circuit:

Roberts v. Manson, 876 F.2d 670 (8th Cir. 1989)

Section 636(b)(3) does not extend to non-consensual evidentiary hearings. Dicta: Consent,

combined with de novo review, might permit evidentiary matters to be referred under the

provision. 

9th Circuit:

NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410 (9th Cir. 1994)

Section 636(b)(3) does not authorize a magistrate judge, appointed as an appellate special

master, to conduct non-consensual criminal contempt trials on behalf of the court of appeals. 

The only statutory basis for the criminal jurisdiction of magistrate judges is 18 U.S.C.

§ 3401, which provides for the defendant's specific written consent.

December 2013 10 INVENTORY
5. Bankruptcy Matters

Several circuits differ over whether bankruptcymatters may be referred to magistrate judges. Issues

include whethermagistrate judgesmayissue final decisions in bankruptcycases with litigant consent

under § 636(c) and whether bankruptcy appeals may be referred to magistrate judges under

§ 636(b)(3), subject to de novo review by the district judge. See also § 8(A)(3), infra.

2d Circuit:

United States v. Warshay, 1998 WL 767138 (E.D.N.Y. 1998)

Referral of bankruptcy appeal to a magistrate judge for preparation of a report and

recommendation under § 636(b)(3) was proper and did not violate either 28 U.S.C. § 157

(governing referrals to bankruptcy court) or § 636(b)(3). Bankruptcy appeals are analogous

to appeals in social security cases, which are routinely referred to magistrate judges.

3d Circuit:

In re Continental Airlines, 218 B.R. 324 (D. Del. 1997), aff'd, 134 F.3d 536 (3d Cir.), cert.

denied, 525 U.S. 929 (1998)

A district judge had authority under § 636(b)(3) to refer a bankruptcy appeal to a magistrate

judge.

5th Circuit:

Bannistor v. Ullman, 287 F. 3d 394 (5th Cir. 2002)

While noting that the district court's reference of bankruptcy motions to a magistrate judge

was unusual, the appellate court concluded that such references did not amount to reversible

error. There is no authority that precludes the reference of motions under Fed. R. Civ. P. 59

to magistrate judges, and the appellate court had previously permitted district courts to refer

motions under Fed. R. Civ. P. 60 to magistrate judges for report and recommendation under

28 U.S.C. § 636(b)(3).

Matter of Evangeline Refining Co., 890 F.2d 1312 (5th Cir. 1989)

The district court's revocation of a referral of a bankruptcy appeal to a magistrate judge for

a report and recommendation corrected its improper referral. (No citation to Federal

Magistrates Act.)

7th Circuit:

Michelson v. Schor, 1996 WL 667803 (N.D. Ill. 1996)

A magistrate judge was referred all "post-judgment collection proceedings" under 

§ 636(b)(3) in an action to enforce the judgment of the bankruptcy court. The magistrate

judge's decision was subject to de novo review. 

December 2013 11 INVENTORY
8th Circuit: 

In re Apex Oil Co., 146 B.R. 821 (E.D. Mo. 1992)

The district court had authority under § 636(b)(3) to refer a bankruptcy appeal to a magistrate

judge to prepare a report and recommendation. Due to the complexity of bankruptcymatters,

judicial economy and efficiency are aided by such referrals.

10th Circuit:

In re Carpenter, 205 F.3d 1249 (10th Cir. 2000)

The referral of a bankruptcy appeal to a magistrate for an advisory opinion is permissible.

The purpose of making such a referral is to "define and focus the issues on appeal." 

In re Griego, 64 F.3d 580 (10th Cir. 1995)

A district court could refer a bankruptcy appeal to a magistrate judge as long as the referral

is solely to define and focus the issues on appeal, and the district court reserves for itself the

final decision.

Virginia Beach Federal Sav. and Loan Ass'n. v. Wood, 901 F.2d 849 (10th Cir. 1990)

A magistrate judge is not permitted to enter a final decision in a bankruptcy appeal. A

magistrate judge, however, may conduct an advisory hearing, provided the district judge

signs the final order.

B. Pretrial and Trial Duties

Section 636(b)(3) is used by district courts to refer various pretrial and trial duties not specified

elsewhere in the Federal Magistrates Act to magistrate judges.

1. Grand Jury Proceedings

8th Circuit:

In re Grand Jury Proceedings Julie Dzikowich, 620 F. Supp. 521 (W.D. Wis. 1985)

A magistrate judge acted within proper authority under § 636(b)(3), subject to de novo

review, in denying a motion to quash a grand jury subpoena issued under 18 U.S.C.

§ 2518(10).

In re Grand Jury Appearance of Cummings, 615 F. Supp. 68 (W.D. Wis. 1985)

A magistrate judge is authorized to grant a witness immunity in a grand jury proceeding.

9th Circuit:

In re Search of 6783 East Soaring Eagle Way Scottsdale, AZ, 109 F. Supp. 2d 1162 (D. Az.

2000)

Magistrate judges have authority under 28 U.S.C. § 636(b)(3) to order the disclosure of

federal grand jury testimony. (Opinion by a magistrate judge.)

December 2013 12 INVENTORY
2. Arraignments in Felony Cases [Fed. R. Crim. P. 10 &, 11]

When authorized by local rule or delegated by a district judge, magistrate judges may preside over

arraignments in felony cases under § 636(b)(3). 

1st Circuit:

United States v. Friel, 436 F. Supp. 2d 187 (D. Me. 2006)

The defendant was not entitled to re-arraignment and a rehearing on his detention hearing

based on the fact that a magistrate judge took his not guilty plea at an arraignment under Fed.

R. Crim. P. 10. There was no requirement that an Article III judge take the defendant's not

guilty plea at an arraignment in a felony case. 

3d Circuit:

Carter v. United States, 388 F. Supp. 1334 (W.D. Pa.), aff'd, 517 F.2d 1397 (3d Cir. 1975)

The "additional duties" clause of § 636(b)(1)[subsequently amended to become § 636(b)(3)]

authorizes magistrate judges to conduct post-indictment arraignments and to accept pleas of

not guilty in felony cases.

United States v. LaLonde, 509 F.3d 750 (6th Cir. 2007)

Magistrate judge's failure to read the indictment during the arraignment, a technical violation

of Rule 10, did not constitute plain error that affected the defendant's substantial rights where

the defendant was represented bycounsel during the arraignment and the defendant could not

identify any way in which the magistrate judge's error prejudiced his ability to defend

himself.

9th Circuit:

United States v. Stephenson, 244 Fed. Appx. 166 (9th Cir. 2007)

The district court was within its discretion to delegate an arraignment to a magistrate judge

over the defendant's objection. The magistrate judge may hear “any pretrial matter” with

eight exceptions listed in 28 U.S.C. § 636(b)(1)(A), andCongress considered post-indictment

arraignments to be a “pretrial matter” within this definition. 

United States v. Smith, 424 F. 3d 992 (9 Cir. 2005), cert. denied, 547 U.S. 1008 (2006) th

A magistrate judge may conduct the arraignment of a defendant arrested and indicted on

felony charges. The district court's local rule provided that magistrate judges had the

authority to handle pretrial matters in felony cases, and did not exclude an arraignment

proceeding where a not guilty plea is entered. 

United States v. Collins, 2008 WL 427280 (D. Nev. 2008)

Magistrate judges have authority to take a criminal defendant's initial plea of not guilty at an

arraignment under Fed. R. Crim. P. 10. 

December 2013 13 INVENTORY
3. Acceptance of Guilty Pleas in Felony Cases

In June 1994 the Magistrate Judges Committee supplemented the Long Range Plan for the

Magistrate Judges System to endorse creation of a pilot program in which magistrate judges would

be authorized to accept guilty pleas and conduct sentencing proceedings in felony cases with the

consent of the parties. A large number of courts have authorized magistrate judges to conduct

allocution proceedings to accept felony guilty pleas under Fed. R. Crim. P. 11 as an additional duty

under § 636(b)(3). Some courts have further held that a magistrate judgemay accept the defendant's

guilty plea in a felony case after conducting the Rule 11 colloquy, while other courts have held that

the magistrate judge may only submit a report recommending that the district judge accept the guilty

plea. 

1st Circuit:

United States v. Vega-Martinez, 425 F. 3d 15 (1st Cir. 2005)

Where the defendant was pleading guilty to drug conspiracy charges, the magistrate judge

conducting the change of plea colloquy under Fed. R. Crim. P. 11 adequately determined that

the defendant’s guilty plea was voluntarily given. The magistrate judge was not required to

perform “a more rigorous voluntariness colloquy” where defendant’s son was pleading guilty

as a co-defendant in the case.

2d Circuit:

United States v. Brumer, 528 F.3d 157 (2d Cir. 2008)

Where a magistrate judge conducted the felony guilty plea proceeding with the defendants’

consent, the defendants did not have a right to be present when the district judge reviewed

the allocution transcripts and signed the orders accepting the defendants’ pleas, and that the

procedural requirements of 28 U.S.C. § 636(b)(1), that mandate preparation of a report and

recommendation and provide defendants with a ten-day period to file written objections, did

not apply to felony guilty plea proceedings under § 636(b)(3).

United States v. Chaudry, 52 Fed. Appx. 540 (2d Cir. 2002)

A magistrate judge had authority to conduct a guilty plea proceeding in a felony case, even

where the district judge did not formally refer the proceeding to the magistrate judge in

writing or through a docket entry.

United States v. Williams, 23 F.3d 629 (2d Cir.), cert. denied, 513 U.S. 1045 (1994)

A magistrate judge may administer the allocution under Fed. R. Crim. P. 11 to accept a

defendant's guilty plea in a felony case with the defendant's consent without violating Article

III of the Constitution or the Federal Magistrates Act. After conducting the Rule 11

allocution with defendant's consent, the magistrate judge submits a recommendation to the

district judge regarding acceptance of the guilty plea.

December 2013 14 INVENTORY
4th Circuit: 

United States v. Benton, 523 F.3d 424, cert. denied, 555 U.S. 424 (4 Cir. 2008) th

A magistrate judge has authority to accept a defendant's guilty plea in a felony case under

Fed. R. Crim. P. 11 after conducting the guilty plea colloquy with the defendant's consent.

United States v. Osborne, 345 F.3d 281 (4 Cir. 2003) th

A magistrate judge has authority to conduct a guilty plea proceeding under Fed. R. Crim. P.

11 in a felony case with the consent of the parties. The district judge is not required to

conduct de novo review of the guilty plea proceeding conducted by a magistrate judge if the

defendant does not object or otherwise request such review.

5th Circuit:

United States v. Underwood, 597 F.3d 661 (5 Cir. 2010) th

A defendant’s consent to have a magistrate judge conduct a guilty plea proceeding in a felony

case under Fed. R. Crim. P. 11 and 28 U.S,C. § 636(b)(3) could be inferred from the

defendant’s conduct when he failed to object to the magistrate judge conducting the plea

colloquy. [See Information Memorandum No. 316 for a more detailed summary of this

case.]

United States v. Arami, 536 F.3d 479 (5th Cir. 2008)

A defendant has an absolute right to withdraw his guilty plea under Fed. R. Crim. P. 11

where the defendant consents to having a magistrate judge conduct the guilty plea colloquy

under Rule 11 on a report and recommendation basis, but the district judge has not yet

accepted the defendant’s plea.

United States v. Bolivar-Munoz, 313 F. 3d 253 (5th Cir. 2002), cert. denied, 538 U.S. 953

(2003)

A magistrate judge had authority to conduct a guilty plea proceeding in a felony case, even

when the district judge did not formally refer the proceeding to the magistrate judge until

after the guilty proceeding had been conducted. Any error in referring the matter to the

magistrate judge was procedural and was waived when the defendant did not object before

the district judge entered judgment.

United States v. Dees, 125 F.3d 261 (5th Cir. 1997), cert. denied, 522 U.S. 1152 (1998)

Taking a guilty plea with the parties' consent is a permissible additional duty for a magistrate

judge under § 636(b)(3), and does not threaten the exclusive Article III power of the district

court to preside over a felony trial.

8th Circuit:

United States v. Torres, 258 F.3d 791 (8th Cir. 2001)

Under § 636(b)(3), a magistrate judge may conduct a proceeding to conduct a colloquy under

Fed. R. Crim. P. 11 and recommend that a district judge accept a defendant's guilty plea in

a felony case with the defendant's consent. 

December 2013 15 INVENTORY
9th Circuit:

United States v. Arellano-Gallegos, 387 F.3d 794 (9 Cir. 2004) th

The magistrate judge erred by failing to adequately explain the consequences of the

defendant’s waiver of his right to appeal during the colloquy proceeding to accept the

defendant’s guilty plea under Fed. R. Crim. P. 11.

United States v. Reyna-Tapia, 328 F.3d 1114 (9 Cir.), cert. denied, 540 U.S. 900 (2003) th

Plea colloquies under Fed. R. Crim. P. 11 in felony cases are additional duties that may be

delegated to magistrate judges under 28 U.S.C. § 636(b)(3) for findings and

recommendations with the defendants’ consent. De novo review of the magistrate judge’s

findings and recommendations is required if, and only if, a party files objections to the

findings and recommendations.

10th Circuit: 

United States v. Montano, 472 F.3d 1202 (10 Cir.), cert. denied, 552 U.S. 896 (2007) th

Where a magistrate judge conducted a felony guilty plea colloquy under Fed. R. Crim. P. 11

with the defendant's consent and accepted defendant’s guilty plea made pursuant to a plea

agreement, which included a provision whereby the defendant waived her right to appeal her

sentence, the waiver of appeal clause in the plea agreement was enforceable, even though the

district judge orally revoked the waiver of appeal provision at the defendant’s sentencing

hearing.

United States v. Ciapponi, 77 F.3d 1247 (10th Cir.), cert. denied, 517 U.S. 1215 (1996)

A magistrate judge may conduct a proceeding to accept a guilty plea in a felony case under

Fed. R. Crim. P. 11 with the defendant's consent. The magistrate judge was not required to

prepare a report and recommendation, but was authorized to accept the defendant's plea after

conducting the Rule 11 colloquy. A defendant's right to move for withdrawal of a plea under

Fed. R. Crim. P. 32 is sufficient to protect the defendant's rights during the plea proceeding. 

11th Circuit:

United States v. Woodard, 387 F.3d 1329 (11th Cir. 2004), cert. denied, 543 U.S. 1176

(2005)

The Federal Magistrates Act authorized a magistrate judge to take a guilty plea and to

conduct a Rule 11 proceeding with the defendant’s consent, and that authority to conduct

such proceedings to a magistrate judge did not offend the principles of Article III. 

Henry v. United States, 2010 WL 1850448 (M.D. Fla. May 7, 2010)

District judge, ruling on a petitioner’s motion to vacate his conviction under 28 U.S.C. §

2255, held that it was not plain error where a magistrate judge conducted a guilty plea

proceeding under Fed. R. Crim. P. 11 in a felony case and issued a report and

recommendation without the petitioner’s explicit consent. [See Information Memorandum

No. 318 for a more detailed summary of this case.]

December 2013 16 INVENTORY
4. Sentencing Hearing in Felony Case

11th Circuit:

United States v. Ruiz-Rodriguez, 277 F.3d 1281 (11th Cir. 2002)

A magistrate judge did not have authority under § 636(b)(3) to conduct a sentencing hearing

in a felony case, either independently or on a report and recommendation basis, without the

defendant’s consent.

5. Pretrial Evidentiary Hearings

3d Circuit:

Beazer East, Inc v. The Mead Corp., 412 F.3d 429 (3d Cir. 2005), cert. denied, 546 U.S.

1091 (2006)

The referral of an evidentiary proceeding to allocate liability under CERCLA among the

various responsible parties to a magistrate judge under § 636(b)(3) was improper. The

parties' consent or lack thereof is a key factor in deciding whether a referral is authorized

under § 636(b)(3). Equitable allocation is at the very core of a CERCLA contribution action

and is therefore not a preliminary or subordinate matter that may be referred to a magistrate

judge under § 636(b)(3) without the parties' consent.

 

5th Circuit:

John v. State of Louisiana, 899 F.2d 1441 (5th Cir. 1990)

A magistrate judge may conduct a proceeding to determine Fed. R. Civ. P. 37 sanctions

against an attorney under either § 636(b)(3)or § 636(b)(1).

Feist v. Jefferson County, 778 F.2d 250 (5th Cir. 1985)

A magistrate judge may conduct a pretrial evidentiary hearing regarding adequacy of

pleadings in a prisoner civil rights case under either § 636(b)(3) or § 636(b)(1).

6. Government Applications for Electronic Eavesdropping Orders [Wiretaps]

2d Circuit:

In re United States of America, 10 F.3d 931 (2d Cir. 1993), cert. denied sub nom., Korman

v. U.S., 513 U.S. 812 (1994)

The court issued a writ of mandamus against a district judge to stop the referral of

government applications for electronic eavesdropping orders under the Omnibus Crime

Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq. ["Title III"], to magistrate

judges. Title III and the Federal Magistrates Act do not permit the referral of wiretap

applications to magistrate judges.

December 2013 17 INVENTORY
7. Other Pretrial & Trial Duties in Criminal and Administrative Proceedings

2d Circuit:

United States v. Construction Products Research, Inc. 73 F.3d 464 (2d Cir.), cert. denied,

519 U.S. 927 (1996)

A petition to enforce an administrative subpoena was referred to a magistrate judge under 

§ 636(b)(3) for preparation of a report and recommendation.

United States v. Alvarado, 923 F.2d 253 (2d Cir. 1991)

A district judge remanded a matter to a magistrate judge to hold a Batson hearing to

determine whether peremptory challenges in jury selection were discriminatory.

4th Circuit:

In re Application of the United States of America for an Order Pursuant to 18 U.S.C. Section

2703(d), 707 F.3d 283 (4 Cir. 2013) th

Magistrate judge had authority under 28 U.S.C. § 636(b)(3) to seal an order issued under the

Stored Communications Act (SCA), 18 U.S.C. § 2703(d). Treating the subscriber’s appeal

as a petition for a writ of mandamus, the appellate court initially determined that the

magistrate judge’s sealing and docketing decisions fell within the “additional duties”

provision of 28 U.S.C. § 636(b)(3), and that the district judge properly applied the de novo

standard of review to the magistrate judge’s rulings. [See Information Memorandum No. 326

for a more detailed summary of this case.]

5th Circuit:

United States v. Krout, 56 F.3d 643 (5th Cir. 1995), cert. denied, 516 U.S. 1076 (1996)

The district court did not err in refusing to grant a defendant's motion for a mistrial after a

magistrate judge, sometime between jury selection and resumption of the trial, excused a

juror without notifying the parties, since the defendant could not demonstrate any prejudice

caused by excusal of the juror. 

6th Circuit:

Vitols v. Citizens Banking Co., 984 F.2d 168 (6th Cir. 1993)

A magistrate judge acting on a referral under § 636(b)(3) without litigant consent had no

authority to issue a case-dispositive ruling on a motion to certify a district court order for

interlocutory appeal.

7th Circuit:

Matter of Establishment Inspection, 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S. 884 

(1979)

A magistrate judge is authorized to issue OSHA administrative search warrants as both a

commissioner duty under § 636(a) and as an additional duty under § 636(b)(3).

December 2013 18 INVENTORY
Matter of Skil Corp., 119 F.R.D. 658 (N.D. Ill. 1987)

A magistrate judge has authority under §§ 636(b)(3) and (e) to entertain motions to quash

and motions to show cause regarding enforcement of an administrative inspection warrant. 

(Opinion by magistrate judge.)

In re Grand Jury Proceedings Julie Dzikowich, 620 F. Supp. 521 (W.D. Wis. 1985)

A magistrate judge's authority under § 636(b)(3) extends to deciding motions under 18

U.S.C. § 3504 (illegal surveillance claims) if the motion is raised at an appropriate time.

8th Circuit:

United States v. Miller, 609 F.2d 336 (8th Cir. 1979)

A magistrate judge is authorized to issue a proposed order enforcing an IRS summons on a

report and recommendation basis, subject to de novo determination by the district judge.

9th Circuit:

United States v. Tanoue, 94 F.3d 1342 (9th Cir. 1996)

A magistrate judge issued a report and recommendation to enforce an IRS summons to

compel the defendant to submit handwriting exemplars, subject to de novo determination by

the district judge (no discussion of magistrate judge authority). 

10th Circuit:

United States v. Lindsay, 60 F.3d 837 (10th Cir. 1995) (Table disposition -- text available

on WESTLAW)

A magistrate judge did not have authority to enter a final, appealable order on an IRS petition

to enforce a summons. The magistrate judge's order enforcing the IRS summons was

essentiallyan interlocutorydiscoveryorderthat could not be appealed to the court of appeals.

United States v. Mueller, 930 F.2d 10 (10th Cir. 1991)

A magistrate judge was authorized to issue a proposed order to enforce an IRS summons on

a report and recommendation basis, subject to de novo determination by the district judge.

D.C. Circuit:

United States v. Hemmings, 1991 WL 79586 (D.D.C. 1991)

Dicta: Section 636(b)(3) may allow magistrate judges to rule on requests for mental

competency examinations under 18 U.S.C. § 4241. (Opinion by a magistrate judge.)

8. Prisoner Cases

5th Circuit:

Jones v. Johnson, 134 F.3d 309 (5th Cir. 1998)

A district judge could not delegate to a magistrate judge under § 636(b)(3) authority to issue

a final order denying a certificate of probable cause to appeal a prisoner's habeas corpus

petition under the Antiterrorism and Effective Death Penalty Act of 1996. 

December 2013 19 INVENTORY
7th Circuit:

Williams v. Bowen, 1988 WL 128676 (N.D. Ill. 1988)

A prisoner's motion for attorneys' fees under the Equal Access to Justice Act referred under

§ 636(b)(3) will be treated as a non-case-dispositive matter. (Opinion bya magistrate judge.)

10th Circuit:

Clark v. Poulton, 963 F.2d 1361 (10th Cir.), cert. denied, 506 U.S. 1014 (1992)

A prisoner civil rights action alleging excessive force during police custody could be referred

to a magistrate judge under § 636(b)(3), subject to de novo determination by a district judge.

9. In Forma Pauperis Determination

9th Circuit:

Minetti v. Port of Seattle, 152 F.3d 1113 (9th Cir.1998)

District court did not err in refusing to permit a pro se litigant to object to a magistrate

judge’s report and recommendation that the litigant’s application to proceed in forma

pauperis under 28 U.S.C. § 1915 be dismissed. 

10. Alternative Dispute Resolution

2d Circuit:

Ovadiah v. New York Association for New Americans, 1997 WL 342411 (S.D.N.Y. 1997)

A magistrate judge had authority under § 636(b)(3) with the parties' consent to draft a

compromise letter to a state Appeals Board on behalf of the parties as part of a settlement of

federal litigation. The Federal Magistrates Act does not specifically prohibit magistrate

judges from presiding over arbitration proceedings, but arbitration by magistrate judges

should be avoided.

3d Circuit:

Hameli v. Nazario, 930 F. Supp. 171 (D. Del. 1996)

A magistrate judge did not have authority to conduct an evidentiary hearing and enter a

binding non-appealable orderin an employment dispute where the federal court did not have

subject-matter jurisdiction over the dispute, even where both parties consented to the

magistrate judges' involvement in "alternative dispute resolution" proceeding.

7th Circuit: 

DDI Seamless Cylinder v. General Fire Extinguisher, 14 F.3d 1163 (7th Cir. 1994)

Although the magistrate judge did not have authority under the Federal Magistrates Act to

serve as an arbitrator, even with the consent of the parties, the appellate court held that the

parties were bound by the magistrate judge's decision due to the parties' consensual

agreement to be so bound.

December 2013 20 INVENTORY
C. Duties and Proceedings Involving Juries

There have been many cases discussing the application of § 636(b)(3) to permit magistrate judges

to perform various duties and proceedings involving juries in both civil and felony cases. 

1. Jury Selection

a. Felony Voir Dire

Supreme Court:

Gonzalez v. United States, 553 U.S. 242 (2008)

The express consent by defendant's counsel suffices to permit a magistrate judge to preside

over jury selection in a felony trial under § 636(b)(3).

Peretz v. United States, 501 U.S. 923 (1991)

A magistrate judge could be referred a felony voir dire proceeding as an additional duty

under § 636(b)(3) with the parties' consent. 

Gomez v. United States, 490 U.S. 858 (1989)

Section 636(b)(3) did not authorize a magistrate judge to conduct voir dire in a felony case

as an additional duty if the defendant objected to the magistrate judge's involvement.

2d Circuit:

United States v. Taylor, 92 F.3d 1313 (2d Cir. 1996), cert. denied, 519 U.S. 1093 (1997)

When the district court reviews the magistrate judge's felony voir dire decisions, as long as

a party whose credibility is in question has been afforded an opportunity to be heard before

the district judge on the matters decided initially by the magistrate judge, the appellate court

will afford the district judge's determination substantial deference, and it will not be

overturned unless clearly erroneous. 

b. Civil Voir Dire

6th Circuit:

Stockler v. Garratt, 974 F.2d 730 (6th Cir. 1992)

A magistrate judge did not have authority to preside over voir dire in a civil case under

§ 636(b)(3) where the parties objected. Because the Supreme Court's decision in Peretz

focused on the parties' consent, the Peretz reasoning did not apply to a situation where the

parties objected to the magistrate judge's involvement in civil voir dire.

December 2013 21 INVENTORY
7th Circuit:

Olympia Hotel Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363 (7th Cir. 1990)

Section 636(b)(3) does not authorize a magistrate judge to conduct civil voir dire over the

objections of the parties. The court followed the Supreme Court's reasoning in Gomez v.

United States, 490 U.S. 858 (1989).

11th Circuit:

Thomas v. Whitworth, 136 F.3d 756 (11th Cir. 1998)

A magistrate judge may not conduct voir dire in a civil case under § 636(b)(3) over a party's

objection. The magistrate judge's selection of the jury was not harmless error and thus

required a new trial.

2. Hearing Closing Argument

5th Circuit:

United States v. Boswell, 565 F.2d 1338 (5th Cir.), cert. denied, 439 U.S. 819 (1978)

It was harmless error to permit a magistrate judge to preside over closing argument when the

trial judge was ill.

9th Circuit:

United States v. Gamba, 541 F.3d 895 (9 Cir. 2008) th

After the court's original opinion was remanded by the Supreme Court for reconsideration

in light of the Supreme Court's opinion in Gonzalez v. United States, 553 U.S. 128 (2008),

the Ninth Circuit concluded that a magistrate judge could preside over the closing argument

in a felony case with the consent of the defendant’s counsel under 28 U.S.C. § 636(b)(3), and

that the district judge's appointment of the magistrate judge to preside over the closing

argument bears a close relationship to other duties that magistrate judges are specifically

permitted by statute to perform. 

3. Presiding Over Jury Deliberation

2d Circuit:

Morales v. United States, 294 F. Supp. 2d 174 (D. Conn. 2003)

A magistrate judge had authority under 28 U.S.C. § 636(b)(3) to preside over jury

deliberations in a felony case without the defendant’s prior consent as long as the judge’s

role in such proceedings was ministerial. 

3d Circuit:

Government of Virgin Islands v. Paniagua, 922 F.2d 178 (3d Cir. 1990)

The declaration of a mistrial by the magistrate judge was an improper exercise of Article III

power, but the defendant's motion for a mistrial judicially estopped him from asserting the

error.

December 2013 22 INVENTORY
8th Circuit:

Harris v. Folk Constr. Co., 138 F.3d 365 (8th Cir. 1998)

A magistrate judge did not have authority under § 636(b)(3) to supervise the jury

deliberations in a civil case and to dismiss a juror without the parties' explicit consent. 

District judge could not delegate duties under § 636(b)(3) that require a final and

independent determination of fact or law by the magistrate judge. 

 

United States v. Demarrias, 876 F.2d 674 (8th Cir. 1989)

A magistrate judge is permitted to preside over felony jury deliberations when the trial judge

left town after instructing the jury. The district judgemaintained overall control over the trial

by telephone.

9th Circuit:

United States v. Carr, 18 F.3d 738 (9th Cir.), cert. denied, 513 U.S. 821 (1994)

A magistrate judge is authorized to preside over a read-back of witness testimony by the

court reporter to the deliberating jury when the district judge was unavailable. 

United States v. Saunders, 641 F.2d 659 (9th Cir.), cert. denied, 452 U.S. 918 (1981)

A magistrate judge is permitted to preside over felony jury deliberations where the trial judge

was gone for the weekend.

10th Circuit:

United States v. Mendez-Lopez, 338 F.3d 1153 (10 Cir.), cert. denied, 540 U.S. 1093 (2003) th

A magistrate judge had authority to preside over a deliberating jury in a felony case and to

answer a juror’s question where the district judge was available by phone if needed.

11th Circuit:

Saldana v. United States, 206 Fed. Appx. 843 (11 Cir. 2006) th, cert. denied, 549 U.S.C. 1358

(2007)

A magistrate judge had authority to preside over a deliberating jury in a felony case where

the defendant's counsel agreed to allow the magistrate judge to answer questions from the

jury and the defendant gave knowing and voluntary consent to having the magistrate judge

preside over jury deliberations.

United States v. Desir, 257 F.3d 1233 (11 Cir. 2001) th

A magistrate judge inappropriately exercised the authority of an Article III judge when he

made a final decision regarding a deliberating jury's request for a read-back of trial testimony

without consulting with the district judge and without the explicit consent of the parties. 

December 2013 23 INVENTORY
4. Instructing Jury 

5th Circuit:

United States v. De La Torre, 605 F.2d 154 (5th Cir. 1979)

The defendant is entitled to have an Article IIIjudge rule on objections and requests to reread

instructions from the jury absent waiver by counsel. It was not harmless error for the

magistrate judge to preside. 

6th Circuit:

Allen v. United States, 921 F.2d 78 (6th Cir. 1990), cert. denied, 501 U.S. 1253 (1991)

The magistrate judge performed a mere ministerial function by charging the jury with

instructions provided by the district judge. The question of waiver was immaterial because

the magistrate judge did not exceed the delegated authority.

United States v. Sawyers, 902 F.2d 1217 (6th Cir. 1990), cert. denied, 501 U.S. 1253 (1991)

A magistrate judgemaybe delegated duties of reading the standard Allen charge to a jury and

of accepting the verdict in a felony trial without offending the Supreme Court's reasoning in

Gomez v. United States, 490 U.S. 858 (1989).

8th Circuit:

Kociemba v. G.D. Searle & Co., 707 F. Supp. 1517 (D. Minn. 1989)

The magistrate judge did not coerce the jury or issue an impermissible Allen charge by

instructing the jury to fill in the remaining blanks on the verdict form.

9th Circuit:

United States v. Saunders, 641 F.2d 659 (9th Cir.), cert. denied, 452 U.S. 918 (1981)

A magistrate judge is permitted to instruct a jury to continue deliberations after dinner on a

Friday night. There was no evidence that the jury was coerced into reaching its verdict.

5. Polling Jury

9th Circuit:

United States v. Gomez-Lepe, 207 F.3d 623 (9 Cir. 2000) th

A magistrate judge improperly polled a jury in a felony case without first obtaining the

defendant’s consent.

6. Accepting Jury's Verdict

6th Circuit:

United States v. Day, 789 F.2d 1217 (6th Cir. 1986)

A magistrate judge is permitted to accept a jury's verdict where the district judge was

occupied with other court business.

December 2013 24 INVENTORY
8th Circuit:

United States v. Johnson, 962 F.2d 1308 (8th Cir.), cert. denied sub nom., Thomas v. United

States, 506 U.S. 928 (1992)

A magistrate judge could accept a jury's verdict in a felony case when the trial judge was

unavailable.

9th Circuit:

United States v. Foster, 57 F.3d 727 (9th Cir. 1995), revs'd en banc on other grounds, 133

F.3d 704 (9th Cir. 1998)

The acceptance of a jury verdict is a "ministerial" duty that may be assigned to a magistrate

judge under § 636(b)(3).

7. Dismissing Jury

8th Circuit:

Kociemba v. G.D. Searle & Co., 707 F. Supp. 1517 (D. Minn. 1989)

A magistrate judge had authority to dismiss a jury as an ancillary duty to his authority to

accept the jury's verdict.

D. Post-Judgment Duties

Section 636(b)(3) is often used by courts as authority to refer post-trial duties to magistrate judges. 

While other sections of the Federal Magistrates Act make no specific reference to post-trial duties,

some courts also utilize §§ 636(b)(1)(A) and (B) as the basis for referring post-judgment matters to

magistrate judges. 

1. Post-Judgment Dispute Among Creditors

9th Circuit: 

Columbia Record Productions v. Hot Wax Records, Inc., 966 F.2d 515 (9th Cir. 1992)

A magistrate judge did not have authority under § 636(b)(3) to enter a post-judgment order

assigning priorities among creditors.

10th Circuit:

Colorado Bldg. & Const. Trade Council v. B. B. Andersen Const. Co., Inc., 879 F.2d 809

(10th Cir. 1989)

Under the reasoning in Gomez v. United States, 490 U.S. 858 (1989), a magistrate judge is

not authorized by the Federal Magistrates Act to preside over a post-judgment dispute

between creditors

December 2013 25 INVENTORY
2. Garnishment

8th Circuit:

Loewen-America, Inc. v. Advance Distributing Co., Inc., 705 F.2d 311 (8th Cir. 1983)

The parties did not challenge the magistrate judge's authority to preside over execution and

garnishment proceedings. (No discussion of magistrate judge authority.)

10th Circuit:

The Society of Lloyd's v. Bennett, 204 Fed. Appx. 728 (10th Cir. 2006)

A judgment debtor who stipulated to an extension of a writ of garnishment in proceedings

brought by a judgment creditor pending discovery into his wife's interest in his brokerage

account, waived any objections to the magistrate judge's authority under § 636(b)(3) to stay

the release of the writ of garnishment.

3. Proceedings in Aid of Execution of Judgment

1st Circuit:

Aetna Casualty & Surety Co. v. Rodco Autobody, 965 F. Supp. 104 (D. Mass. 1996)

A district judge adopted the magistrate judge's report and recommendations concerning the

judgment debtors' non-exempt interest in property and their ability to pay the judgment after

the proceedings were referred to a magistrate judge under § 636(b)(3).

3d Circuit:

Hearst/ABC-ViacomEntertainment Services v. Goodway Mktg., Inc., 815 F. Supp. 145 (E.D.

Pa. 1993)

A magistrate judge could preside in a proceeding under the Pennsylvania civil procedure

rules to obtain relief in aid of execution of a judgment, provided the magistrate judge

prepared a report and recommendation for final disposition by the district judge. (No

reference made to the provision of the Federal Magistrates Act under which the reference

was made.)

4th Circuit:

First Union Nat. Bank of Virginia v. Craun, 853 F. Supp. 209 (W.D. Va. 1994)

The magistrate judge, acting under § 636(b)(3), entered a post-judgment charging order

against the limited partnership interests held by the defendant. (Opinion by a magistrate

judge.)

Chicago Pneumatic Tool Co. v. Stonestreet, 107 F.R.D. 674 (S.D.W. Va. 1985)

A magistrate judge is authorized to preside over a deposition in aid of execution of judgment.

December 2013 26 INVENTORY
6th Circuit:

Bache Halsey Stuart Shields, Inc. v. Killop, 589 F. Supp. 390 (E.D. Mich. 1984)

A magistrate judge is authorized to conduct post-judgment collection proceedings under

§ 636(b)(3). Post-judgment proceedings are distinguishable from prohibited case-dispositive

relief.

7th Circuit:

United States v. Meux, 597 F.3d 835 (7 Cir. 2010) th

A magistrate judge had authority under 18 U.S.C. § 3663A and 28 U.S.C. § 636(b)(3) to rule

on the government’s post-judgment motion for the turnover of funds for the partial

satisfaction of a restitution award in a criminal case. [See Information Memorandum No.

316 for a more detailed summary of this case.]

Michelson v. Schor, 1996 WL 667803 (N.D. Ill. 1996)

A magistrate judge was referred under § 636(b)(3) all "post-judgment collection

proceedings" in an action to enforce a judgment of the bankruptcy court, subject to de novo

review by a district judge. Although the plaintiffs did not object to the magistrate judge's

ruling within 10 days of service, their objections were not waived because they did not have

notice from the magistrate judge of the deadline for filing objections to the ruling. 

4. Default Judgment Proceedings

2d Circuit:

Ferraro v. Kuznetz, 131 F.R.D. 414 (S.D.N.Y. 1990)

The court referred a motion to set aside a default judgment to a magistrate judge, requiring

each side to make an evidentiary presentation and for the magistrate judge to decide whether

the defendants possess a "substantial meritorious defense." The magistrate judge was also

asked to determine the appropriate damages if the movant failed to assert a meritorious

defense to the default judgment.

6th Circuit:

Callier v. Gray, 167 F.3d 977 (6 Cir. 1999) th

Section 636(b)(3) is a broad provision that permits the district court to refer to a magistrate

judge proceedings to determine damages in a default judgment matter. 

7th Circuit:

King v. Ionization Int'l, Inc., 825 F.2d 1180 (7th Cir. 1987)

Dicta: The court found no statutory basis to block the referral of a post-judgment default

proceeding to a magistrate judge.

December 2013 27 INVENTORY
5. Motions to Vacate Judgment

3d Circuit:

Perry v. Delaware River Port Authority, 208 Fed. Appx. 122 (3d Cir. 2006)

A magistrate judge did not have the authority under § 636(b)(3) to issue a final order on a

party's motion under Fed. R. Civ. P. 60 to reopen judgment to void a settlement agreement. 

Because the partymoved for reconsideration of the magistrate judge's order with the district

judge, the magistrate judge's order was more properly treated as a report and

recommendation by both the district court and the appellate court.

Garland v. Malinich, 181 Fed. Appx. 276 (3d Cir. 2006)

When a motion for relief from judgment under Fed. R. Civ. P. 60 is referred to a magistrate

judge pursuant to § 636(b)(3), the magistrate judge is not authorized to enter judgment for

the court, but instead may issue recommendations to the district court which are then subject

to de novo review. 

5th Circuit:

McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 925 F.2d 853 (5th Cir. 1991)

A magistrate judge can issue a report and recommendation on a motion to vacate judgment

under Fed. R. Civ. P. 60, subject to de novo review.

8th Circuit:

LeGear v. Thalacker, 46 F.3d 36 (8th Cir. 1995)

A motion to vacate the judgment in a pro se prisoner civil rights case under Fed. R. Civ. P.

60 may be referred to a magistrate judge under § 636(b)(3) for preparation of a report and

recommendation. The magistrate judge's decision is not a final order and may not be

appealed to the court of appeals.

10th Circuit:

Nat. R.R. Passenger Corp. v. Koch Industries, Inc., 701 F.2d 108 (10th Cir. 1983)

Where a magistrate judge sitting as a special master took a jury's verdict, but recommended

a new trial after concluding that the jury reached a compromise verdict, the court reviewed

the magistrate judge's report and recommendation de novo under § 636(b)(3).

6. Revival of Judgment

10th Circuit:

Securities Investor Protection Corp. v. Institutional Securities of Colorado, Inc. , 37 Fed.

Appx. 423 (10 Cir.), cert. denied sub nom., Scheid v. Goldberg, 537 U.S. 1019 (2002) th 

A magistrate judge did not have authority under § 636(b)(3) to issue a final order reviving

a judgment.

December 2013 28 INVENTORY
7. Expungement of Arrest Record

11th Circuit:

United States v. Lopez, 704 F. Supp. 1055 (S.D. Fla. 1988)

Absent specific statutory authority, the magistrate judge had no authority to preside over

expungement proceedings. After referring to § 636(b)(3), the court noted that the power to

expunge a criminal record was neither affirmatively granted nor denied to magistrate judges.

The court failed to find statutory authority or judicial precedent to support the magistrate

judge's authority to expunge and interpreted the absence of an affirmative grant of authority

to expunge a criminal record as a denial of such authority.

8. Revocation of Probation and Supervised Release

In 1992, 18 U.S.C. § 3401 was amended to authorize magistrate judges to conduct proceedings "to

modify, revoke, or terminate supervised release of any person sentenced to a term of supervised

release by a magistrate judge." 18 U.S.C. § 3401(h). In addition, a new § 3401(i) was added,

providing that a district judge may designate a magistrate judge to conduct hearings to modify,

revoke, or terminate supervised release, including evidentiary hearings, and to submit to the district

judge proposed findings of fact and recommendations for the modification, revocation, or

termination of supervised release by the district judge. Some courts have questioned whether

§ 3401(i) authorizes magistrate judges to conduct proceedings to revoke terms of supervised release

in felony cases. Before these amendments, some courts had used § 636(b)(3) as a statutory basis for

referring such proceedings to magistrate judges. 

4th Circuit:

United States v. Raynor, 764 F. Supp. 1067 (D. Md. 1991)

The sentencing power of 18 U.S.C. § 3401(a) is broad enough to provide magistrate judges

with authority to revoke supervised release in cases where a defendant previously consented

to misdemeanor jurisdiction by a magistrate judge. 

5th Circuit:

United States v. Schnitker, 281 Fed. Appx. 295 (5th Cir. 2008)

A magistrate judge had authority to preside over the defendant's final hearing to revoke his

supervised release under 18 U.S.C. § 3401(i) without the defendant's express consent. The

appellate court rejected the Ninth Circuit's reasoning in United States v. Colacurcio, 84 F.3d

326 (9th Cir. 1996) that supervised release revocation proceedings under § 3401(i) could

only occur in misdemeanor cases. 

United States v. Cooper, 135 F.3d 960 (5th Cir. 1998)

The defendant could not directly appeal the magistrate judge's report and recommendation

that the defendant's term of supervised release be revoked. The magistrate judge's role was

advisory rather than adjudicatory under § 636(b).

December 2013 29 INVENTORY
United States v. Rodriguez, 23 F.3d 919 (5th Cir. 1994)

A district judge improperly sentenced a defendant in absentia when it adopted a magistrate

judge's report and recommendation under 18 U.S.C. § 3401(i) to revoke a term of supervised

release in a felony case under 18 U.S.C. § 3583 without conducting an additional hearing.

Despite the defendant's objections to the magistrate judge's report and recommendation and

his request for a hearing before the district court, the district judge adopted the report without

further proceedings, thereby revoking supervised release and sentencing the defendant to an

additional 24-months imprisonment.

United States v. Williams, 919 F.2d 266 (5th Cir. 1990)

Section 636(b)(3) does not permit the referral of proceedings to revoke terms of supervised

release to magistrate judges.

6th Circuit:

United States v. Waters, 158 F.3d 933 (6th Cir.1998)

A magistrate judge may conduct a proceeding to revoke a defendant’s term of supervised

release in a felony case under 18 U.S.C. § 3401(i) and 28 U.S.C. § 636(b)(3), subject to de

novo review by a district judge.

Banks v. United States, 614 F.2d 95 (6th Cir. 1980)

Section 636(b)(3) does not authorize probation revocation proceedings to be referred to

magistrate judges.

7th Circuit:

United States v. Curry, 767 F.2d 328 (7th Cir. 1985)

Section 636(b)(3) does not authorize probation revocation hearings to be referred to

magistrate judges. 

8th Circuit:

United States v. Azure, 539 F.3d 904 (8th Cir. 2008)

A magistrate judge did not have authority to conduct a proceeding to revoke a defendant’s

term of supervised release under 18 U.S.C. § 3401(i) where there was nothing in the record

of the case to indicate that the district judge had made a designation of the proceeding to the

magistrate judge. The court's failure to make a proper designation under § 3401(i), however,

constituted a procedural error, not a jurisdictional error, that was waived by the defendant

when it was not raised in the district court.

9th Circuit:

United States v. Sanchez-Sanchez, 333 F.3d 1065 (9 Cir. 2003) th

The magistrate judge did not have authority to conduct supervised release revocation

proceedings in a felony case without an order from a district judge or the defendant’s

consent.

December 2013 30 INVENTORY
United States v. Colacurcio, 84 F.3d 326 (9th Cir. 1996)

Section 636(b)(3) does not authorize a magistrate judge to conduct proceeding to revoke a

probation term on a report and recommendation basis in a felony case where the defendant

did not consent. Section 636(b)(3) may not be interpreted in a way that "swallows up" other

provisions of the statute.

9. Habeas Corpus Petitions

5th Circuit:

Garcia v. Boldin, 691 F.2d 1172 (5th Cir. 1982)

The "catch-all" language of § 636(b)(3), as well as § 636(b)(1)(B), authorizes a magistrate

judge to issue a report and recommendation on a petition for a writ to set aside a deportation

order under 28 U.S.C. § 2243.

Washington v. Estelle, 648 F.2d 276 (5th Cir.), cert. denied, 454 U.S. 899 (1981)

The power to appoint counsel in a habeas corpus proceeding is an administrative function

that may be delegated to a magistrate judge as an additional duty under § 636(b)(3).

9th Circuit:

Wang v. Masaitis , 416 F.3d 992 (9th Cir. 2005)

A magistrate judge had authority under 28 U.S.C. § 636(b)(3) to review and prepare a report

and recommendation on a defendant’s habeas corpus petition challenging the magistrate

judge’s extradition order, even though the defendant did not consent to assignment of the

matter to the magistrate judge. 

10. Post-Verdict Petition for Attorney's Fees & Award of Expenses

2d Circuit:

LoSacco v. City of Middletown, 71 F.3d 88 (2d Cir. 1995)

A magistrate judge's order denying review of the clerk's order taxing costs did not become

final until the district judge reviewed it.

5th Circuit:

Merritt v. International Brotherhood of Boilermakers, 649 F.2d 1013 (5th Cir. 1981)

A magistrate judge is authorized to preside in a post-judgment proceeding to determine an

award of expenses for improper discovery motions under Fed. R. Civ. P. 37.

7th Circuit:

Talbott v. Empress River Casino, 1997 WL 458437 (N.D.Ill. 1997)

A post-judgment petition for attorney's fees and costs was referred to a magistrate judge as

an additional duty under § 636(b)(3), subject to de novo review.

December 2013 31 INVENTORY
11. Post-judgment Discovery Dispute

2d Circuit:

Denny v. Ford Motor Co., 146 F.R.D. 52 (N.D.N.Y. 1993)

A district judge who was the subject of a post-verdict motion to compel discovery properly

referred the motion to a magistrate judge under § 636(b)(3). The magistrate judge ordered

further discoveryto determine the factual information possessed by the trial judge. The chief

judge upheld the magistrate judge's order and ordered the parties to direct interrogatories to

the trial judge.

12. Post-Verdict Motion to Unseal Court Records 

11th Circuit:

United States v. Ellis, 90 F.3d 447 (11th Cir. 1996), cert. denied, 519 U.S. 1118 (1997)

A magistrate judge's order unsealing the transcript of in camera proceeding concerning the

defendant's application to proceed in forma pauperis in his appeal of his criminal conviction

was affirmed by both the district judge and the appellate court. (No discussion of magistrate

judge authority.) 

13. Proceedings Under Federal Offenders With Mental Disease or Defect Statute,

18 U.S.C. § 4246

8th Circuit:

United States v. Woods, 944 F. Supp. 778 (D. Minn. 1996)

A magistrate judge has authority to order mental competency examination under 18 U.S.C.

§ 4246(f). (Opinion by a magistrate judge.)

14. Post-Conviction Restitution 

2d Circuit:

United States v. Bengis, 2006 WL 1524496 (S.D.N.Y. June 2, 2006)

The referral of a restitution dispute to a magistrate judge under 18 U.S.C. § 3664(d)(6) and

28 U.S.C. § 636(b)(3) was consistent with the statutes and the Constitution. 

E. Other Duties

Magistrate judges perform various other duties for the district courts. These duties are not described

in the Federal Magistrates Act, and statutes authorizing them do not specify the use of magistrate

judges. The authority to perform these duties has not been addressed in case law, but it is assumed

by the courts where magistrate judges perform the duties to be derived from the general authority of

the Federal Magistrates Act and of the district court itself. This list should not be considered

all-encompassing.

The Judicial Services Office recognizes that the following duties are referred to magistrate judges

in various districts around the country. Such references are often made under local rules. The duties

December 2013 32 INVENTORY
are listed to show how different courts have utilized magistrate judges over the past forty years. The

Division provides this list without commenting upon the propriety of such references.

@ Naturalization Proceedings

@ Summary Jury Trials

@ Service on Administrative Committees (Local Rules; Civil Justice Reform Act;

Speedy Trial Act.) 

@ Factual issues under the Sentencing Guidelines

@ Overseeing Affirmative Action Plans

@ Administering Compliance with the Criminal Justice Act

(18 U.S.C. § 3006A)

@ Ordering Jail and Prison Inspections under Authority of a District Judge

@ All Writs Act (28 U.S.C. § 1651)

@ Determination of Costs of Prosecution (21 U.S.C. § 844)

@ Appointment of Arbitrator or Umpire (9 U.S.C. § 5 and 9 U.S.C. § 6)

@ Entry of Orders in Mortgage Foreclosure Proceedings in Sale of Property Financed

Through Government Loans

@ Exemplification of Court Records for Use in the United States

@ Admission of Attorneys to the District Court Bar

@ Appointment of Custodians of Vessels or Property Seized in Admiralty Proceedings

@ Setting Amount of Security Under the Supplemental Rules of Admiralty Procedure

@ Limitation of Liability Proceedings in Admiralty

December 2013 33 INVENTORY
§ 8. CIVIL CONSENT AUTHORITY UNDER 28 U.S.C. § 636(c) 

A. In General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Authority of Magistrate Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

a. Magistrate Judge Authority to Overrule Earlier Rulings By A

District Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

b. Limited Consent to Magistrate Judge Authority. . . . . . . . . . . . . . . 7

2. District Judge's Referral of Specific Case to Magistrate Judge . . . . . . . . . 8

3. Bankruptcy Matters.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

4. Part-time Magistrate Judges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

5. Constitutionality of Consent Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. Sufficiency of Parties' Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. Form of Consent and Waiver of Right to Article III Judge. . . . . . . . . . . . 13

2. Authority of Counsel to Consent On Behalf of Parties. . . . . . . . . . . . . . . 17

3. Necessity of Consent by All Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

4. Time to File Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

5. Authority to Substitute a Different Magistrate Judge 

Without the Parties' Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

6. "Opt Out" Consent Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

C. Vacating a Reference to Magistrate Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

1. Right of the Parties to Withdraw Consent. . . . . . . . . . . . . . . . . . . . . . . . . 27

2. Authority of Magistrate Judge to Rule on 

Motion to Withdraw Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

3. Extraordinary Circumstances Shown by Any Party.. . . . . . . . . . . . . . . . . 29

4. Good Cause Shown on Motion of the Court. . . . . . . . . . . . . . . . . . . . . . . 31

5. Authority of Magistrate Judge After Reference is Vacated. . . . . . . . . . . . 32

D. Appeal of Magistrate Judge's Decision [Fed. R. Civ. P. 73] . . . . . . . . . . . . . . 33
§ 8. CIVIL CONSENT AUTHORITY UNDER 28 U.S.C. § 636(c) 

A. In General

Section 636(c)(1) of Title 28, United States Code, governs the consensual civil authority of

magistrate judges:

Upon the consent of the parties, a full-time United States magistrate [judge]...may

conduct any and all proceedings in a jury or nonjury civil matter and order the entry

of judgment in the case, when specially designated to exercise such jurisdiction by

the district court or courts he serves.

A magistrate judge may preside over all aspects of any civil case with the parties' consent and the

district court's approval. In this capacity, a magistrate judge exercises case-dispositive authority and

may order the entry of a final judgment.

To exercise civil consent authority, a magistrate judge must be "specially designated" by the district

court under § 636(c)(1). Congress provided that the designation must be general in nature and

cannot be limited to certain specific categories of civil cases. H.R. Rep. No. 287, 96th Cong., 1st

Sess. 11 (1979). The civil consent authority of a magistrate judge so designated is thus limited only

by the general civil jurisdiction of the district court itself. All district courts have designated their

full-time magistrate judges to exercise civil consent authority.

1. Authority of Magistrate Judge

Section 636(c)(1) places no limits on a magistrate judge's authority in a civil case once the parties

consent to the authority of a magistrate judge. Courts have been similarly unwilling to limit

magistrate judge authority. 

2d Circuit:

V.W. v. Favolise, 131 F.R.D. 654 (D. Conn. 1990)

Consent to trial before a magistrate judge includes authority to dispose of motions for

summary judgment under Fed. R. Civ. P. 56. (Opinion by a magistrate judge.)

3d Circuit:

Pfizer, Inc. v. Uprichard , 422 F. 3d 124 (3 Cir. 2005) d

A magistrate judge presiding in a civil case with the consent of the parties under § 636(c)

exceeded his authority when he included a requirement that a party sign a settlement and

release agreement when he corrected the judgment under Fed. R. Civ. P. 60.

4th Circuit:

Fiberlink Communications Corp. v. Magarity, 24 Fed. Appx. 178 (4th Cir. 2001)

Where Virginia law authorized certification of questions to the Virginia Supreme Court by

"the Supreme Court of the United States, a United States court of appeals for any circuit, a

December 2013 2 INVENTORY
United States district court, or the highest appellate court of any state or the District of

Columbia," the court opined that questions from a magistrate judge exercising jurisdiction

with consent of the parties under § 636(c) should be regarded as questions from "a United

States district court."

Lopez v. XTEL Construction Group, LLC, 796 F. Supp. 2d 693 (D. Md. 2011)

A magistrate judge who presided in a civil consent case held that he was not required to

recuse himself under 28 U.S.C. § 455 from considering a motion to uphold a settlement

agreement after having participated in settlement conferences that resulted in an oral

agreement settling the case. [See Information Memorandum No. 321 for a more detailed

summary of this case.]

5th Circuit:

Wright v. Robinson, 113 Fed. Appx. 12 (5th Cir. 2004)

A magistrate judge had authority under § 636(c) to dismiss a pro se plaintiff's case for failure

to prosecute.

Jennings v. McCormick, 154 F.3d 542 (5th Cir. 1998)

A magistrate judge erred in disregarding a pro se prisoner's timely request for a jury trial and

conducting a bench trial under § 636(c) instead, and the error was not harmless because the

plaintiff's claim of use of excessive force would have withstood a motion for directed verdict. 

McDonald v. Steward, 132 F.3d 225 (5th Cir. 1998)

Consent to disposition by a magistrate judge under § 636(c) is not tantamount to waiver of

the right to trial by jury.

Morrow v. Harwell, 640 F. Supp. 225 (W.D. Tex. 1986)

Consent to trial before a magistrate judge includes authority to reassess earlier findings and

enter a second judgment after remand from the court of appeals.

6th Circuit:

Moses v. Sterling Commerce (America), Inc, 122 Fed. Appx. 177 (6 Cir. 2005) th

A magistrate judge in a civil consent case had authority to dismiss the plaintiff’s case as a

sanction for failure to comply with discovery orders, even where no district judge was

assigned to the case after it was referred to the magistrate judge. The fact that the district

judge who was originally assigned the case retired after referring the action to a magistrate

judge on the parties' consent, and that no district judge was thereafter assigned to the referred

case, did not deprive the magistrate judge of her authority in the referred case, up to and

including ruling on dispositive motions. 

United States v. Real Property Known & Numbered as 415 East Mitchell Ave., Cincinnati,

Ohio, 149 F.3d 472 (6th Cir. 1998)

A magistrate judge had authority under § 636(c) to adjudicate a civil forfeiture action under

21 U.S.C. § 881(a)(7) with the consent of the parties.

December 2013 3 INVENTORY
Kerr v. Com'r of Social Security, 171 F. Supp. 2d 712 (E.D. Mich. 2001)

After the parties' original consent in a social security case, the magistrate judge was

authorized to determine the plaintiff's motion for award of attorney fees under the EAJA

without any separate authorization or designation by the district court. The separate referral

of the matter to the magistrate judge was therefore unnecessary.

Miami Valley Carpenters Dist. Council Pension Fund v. Scheckelhoff, 123 F.R.D. 263 (S.D.

Ohio 1988)

Consent to trial before a magistrate judge includes consent to post-trial contempt proceedings

to enforce the judgment.

7th Circuit:

Petrilli v. Drechsel, 94 F.3d 325 (7th Cir. 1996)

A 37-month delay before the magistrate judge rendered a decision in a civil consent case did

not constitute prejudice to the losing party that would justify reversal of the magistrate

judge's decision.

DDI Seamless Cylinder Int'l, Inc. v. General Fire Extinguisher Corp., 14 F.3d 1163 (7th Cir.

1994)

The parties were bound by the informal "arbitration" procedure used by the magistrate judge

to which they stipulated for resolving their dispute after consenting to disposition by a

magistrate judge under § 636(c).

Johnson-Bey v. Lane, 863 F.2d 1308 (7th Cir. 1988)

The reference to a “judge” in a circuit remand rule must be assumed to include magistrate

judges exercising civil consent authority. The court, however, refused to rule on whetherthe

original consent remained binding upon remand, or whether the district judge could 

withdraw the reference to the magistrate judge at that time.

Voktas, Inc. v. Central Soya Co., Inc., 689 F.2d 103 (7th Cir. 1982)

Consent authority includes authority to deny a motion to stay the proceedings during a

pendent state court action.

Minemyer v. R-Boc Representatives, Inc., 283 F.R.D. 392 (N.D Ill. 2012)

A magistrate judge presiding in a civil case on consent ruled that a defendant had waived

a personal jurisdiction defense that after the completion of the jury trial in the case, even

though the district judge originally assigned to the case had earlier denied the defendant’s

motion to dismiss on personal jurisdiction grounds and left open the possibility that the issue

could be raised again if circumstances warranted. Describing the defendant’s actions as

“sandbagging, pure and simple,” a practice recently condemned by the Supreme Court in

Stern v. Marshall, 564 U.S. , 131 S.Ct. 2594 (2011), the magistrate judge concluded that

the defendant’s silence on the jurisdictional question during the protracted period of the

preparation of the final pretrial order constituted a waiver or forfeiture of the question of

December 2013 4 INVENTORY
jurisdiction. [See Information Memorandum No. 325 for a more detailed summary of this

case.]

8th Circuit:

Chelette v. Harris, 229 F.3d 684 (8th Cir. 2000), cert. denied, 531 U.S. 1156 (2001)

A magistrate judge presiding in a prisoner civil rights case under 28 U.S.C. § 636(c) had 

authority to certify a matter for interlocutory appeal, even though 28 U.S.C. § 1292(b)

specifically provides that a "district judge" shall certify interlocutory appeals.

Foster v. Lockhart, 9 F.3d 722 (8th Cir. 1993)

A magistrate judge presiding in a habeas corpus proceeding with litigants' consent under

§ 636(c) had authority to issue an order releasing a prisoner on bail from a state prison after

issuing a writ of habeas corpus.

Orsini v. Wallace, 913 F.2d 474 (8th Cir. 1990), cert. denied, 498 U.S. 1128 (1991)

Congressional intent in enacting § 636(c), combined with the Supreme Court's amendment

of Rule 10, Rules Governing Section 2254 Cases in United States District Courts, authorized

magistrate judges to enter judgments in habeas corpus matters.

Acuity v. North Central Video, LLLP, 468 F. Supp.2d 1071 (D.N.D. 2006)

A magistrate judge had authority in a consent case under § 636(c) to rule that the plaintiff

could not appeal a discovery ruling to the district judge, but could instead treat the plaintiff’s

appeal as a motion for reconsideration. (Opinion by a magistrate judge.)

9th Circuit:

Hanson v. Mahoney, 433 F.3d 1107 (9 Cir. 2006) th

A magistrate judge adjudicating a prisoner’s state habeas corpus proceeding under 28 U.S.C.

§ 2254 with the consent of the parties had authority to issue a certificate of appealability

pursuant to 28 U.S.C. § 2253. 

Irwin v. Mascott, 370 F.3d 924 (9 Cir. 2004) th

A magistrate judge presiding with consent had authority to hold a non-party liable for

contempt sanctions for violating an injunction issued in a class action case arising under the

Fair Debt Collection Practices Act where the named parties served as the non-party’s virtual

representative. 

Gametech Int'l, Inc. v. Trend Gaming Systems, L.L.C., 2008 WL 4571424 (D. Ariz. 2008)

A district judge adopted a magistrate judge's report and recommendation concluding that

where the parties consented to disposition of a civil case bya magistrate judge under §636(c),

the magistrate judge continued to have authority over the case after appeal to and remand

from the court of appeals. Once the parties consented to the magistrate judge's authority in

a civil case and have not successfully withdrawn such consent, the procedural path for the

case, including the appellate route, is parallel to that of a case that is in front of a district

December 2013 5 INVENTORY
court judge. The parties' consent to disposition by the magistrate judge thus does not end

with appeal.

Arnold v. Arizona Dept. Of Public Safety, 233 F.R.D. 537 (D. Ariz. 2005)

Where all the named parties consented to disposition of the class action case by the

magistrate judge, the magistrate judge had authority over all members of the class and

therefore had authority to consider motions to certify the class and approve a tentative

settlement agreement. (Opinion by a magistrate judge.)

10th Circuit:

McCoy v. Lafaut, 813 F. Supp. 1508 (D. Kan. 1993)

The magistrate judge had authority and the duty to determine sua sponte whether he had

proper jurisdiction. The magistrate judge therefore did not err in concluding that the special

designation authority of the magistrate judge in a consent case ended with the entry of a final

judgment, and that he did not have authority to enter a post-judgment garnishment order in

aid of execution of the judgment he had previously entered. 

D.C. Circuit:

Perles v. Kagy, 394 F. Supp. 2d 68 (D.D.C. 2005)

A magistrate judge had authority to rule on a third party’s motion to intervene in the case

after the magistrate judge had entered a judgment in the case with the parties' consent under

§ 636(c). (Opinion by a magistrate judge.)

Am. Sec. Bank N.A. v. John Y. Harrison Realty Co., Inc., 670 F.2d 317 (D.C. Cir. 1982)

A magistrate judge acting under § 636(c) may rule on motions for post-trial discovery and

costs.

a. Magistrate Judge Authority to Overrule Earlier Rulings By A District Judge

1st Circuit:

Fieldwork Boston, Inc. v. United States, 344 F. Supp.2d 257 (D. Mass. 2004)

A magistrate judge had authority to overrule an earlier ruling by a district judge after the

parties had consented under 28 U.S.C. § 636(c) to have the case disposed of by the

magistrate judge. (Opinion by a magistrate judge.)

2d Circuit:

Steinborn v. Daiwa Sec. America, Inc., 1995 WL 761286 (S.D.N.Y. 1995)

A magistrate judge was not barred from entering summary judgment in favor of the

defendant, even when the district judge originally assigned the case had denied an earlier

summary judgment motion. (Opinion by a magistrate judge.)

December 2013 6 INVENTORY
4th Circuit:

Pine Ridge Coal Co. v. Local 8377, United Mine Workers of America, 187 F.3d 415 (4th 

Cir. 1999)

A magistrate judge had authority under 28 U.S.C. § 636(c) to grant summary judgment in a

civil case, even where the district judge previously assigned the case had scheduled a trial.

5th Circuit:

Cooper v. Brookshire, 70 F.3d 377 (5th Cir. 1995)

Upon assuming jurisdiction in a civil consent case under § 636(c), the magistrate judge is not

bound by the district judge's earlier opinions in the case.

6th Circuit:

Taylor v. Nat. Group of Companies, Inc., 765 F. Supp. 411 (N.D.Ohio 1990)

A magistrate judge acting under § 636(c) did not have authority to reconsider and set aside

or alter earlier decisions of the previously presiding district judge. (Opinion by a magistrate

judge.)

7th Circuit:

Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997)

A magistrate judge erred in reopening the defendant's motion for summary judgment where

the district judge had earlier denied the motion on the ground that there were disputed issues

of fact. 

Jones v. Coleman Co., Inc., 39 F.3d 749 (7th Cir. 1994) (Table disposition) 

A magistrate judge presiding under § 636(c) had authority to grant a defendant's motion for

leave to file a motion for summary judgment, even though a district judge had earlier denied

such a motion as untimely.

9th Circuit:

Shouse v. Ljunggren, 792 F.2d 902 (9th Cir. 1986)

A magistrate judge exercising authority under § 636(c) was not bound to follow the district

judge's previous denial of a motion for summary judgment in the same case. The magistrate

judge's decision did not violate the doctrine of the law of the case.

b. Limited Consent to Magistrate Judge Authority

Section 636(c) of Title 28 provides that a magistrate judge may conduct "any or all proceedings" in

a jury or nonjury civil matter with the consent of the parties. This provision has been interpreted to

allow parties to consent to having a magistrate judges preside over and dispose of certain motions

in a case without necessarily disposing of the entire case. Some district courts have adopted local

rules to provide for and encourage the use of limited consent.

December 2013 7 INVENTORY
2d Circuit:

DiCola v. Swissre Holding (North America), Inc., 996 F.2d 30 (2d Cir. 1993)

The parties consented to have a magistrate judge render the final decision on a motion for

summary judgment. (No discussion of magistrate judge authority.)

Gilbert v. St. John's Univ., 1998 WL 19971 (E.D.N.Y. 1998)

The parties consented under § 636(c) to have a magistrate judge determine the defendant's

motion for summary judgment.

6th Circuit:

Holt-Orstead v. City of Dickson, 641 F.3d 230 (6 Cir. 2011) th

A magistrate judge had authority under 28 U.S.C. § 636(c)to issue a final ruling on a discreet

discovery motion where the parties consented to have the magistrate judge determine the

motion in question. The appellate court did not have jurisdiction to entertain an interlocutory

appeal of the magistrate judge’s ruling, which was not a “final judgment” under 28 U.S.C.

§ 1291, and the magistrate judge’s order did not otherwise qualify for immediate

interlocutory review under the collateral order doctrine or other exceptions to the general

prohibition on interlocutory appeals. [See Information Memorandum No. 321 for a more

detailed summary of this case.]

7th Circuit:

Hains v. Washington, 131 F.3d 1248 (7th Cir. 1997)

The court upheld the trial court's local rule encouraging parties to consent to magistrate judge

deciding case-dispositive motions in civil cases.

2. District Judge's Referral of Specific Case to Magistrate Judge 

There is no provision in the Federal Magistrates Act that specifically requires a district judge to

approve the referral of a particular civil consent case to a magistrate judge. Although the Act does

not appear to require the individual referral of specific civil consent cases by a district judge to a

magistrate judge, the words "referred," and "reference" are used several times in section 636(c). In

particular, the last sentence of section 636(c)(2) provides that "Rules of court for the reference of

civil matters to magistrate judges shall include procedures to protect the voluntariness of the parties'

consent." In addition, while there is no statutory requirement for district judge approval of the

referral of a civil consent case, a district judge may vacate a reference of a civil consent case to a

magistrate judge "for good cause shown" under section 636(c)(4). These provisions, combined with

the language of section 636(b)(4), ("Each district court shall establish rules pursuant to which the

magistrate judges shall discharge their duties.") authorize courts to promulgate local rules of

procedure governing civil consent cases and therefore, by implication, contemplate the development

of procedures for the referral of individual cases to magistrate judges. Accordingly, while the Act

does not require that a district judge approve the referral of each civil consent case to a magistrate

judge, it encourages courts to develop their own rules governing such referrals and assignments to

magistrate judges. 

December 2013 8 INVENTORY
5th Circuit:

Hill v. City of Seven Points, 230 F.3d 167 (5th Cir. 2000)

Where the form referring a civil case to a magistrate judge on consent under

28 U.S.C. § 636(c) was not signed by a district judge, and where there was no automatic

referral of the case to a magistrate judge, the magistrate judge did not have jurisdiction to

preside in the case, thereby depriving the court of appeals of jurisdiction to hear the appeal.

7th Circuit:

Hatcher v. Consolidated City of Indianapolis, 323 F.3d 513 (7 Cir. 2003) th

Under the statute and the local rules in force in the Southern District of Indiana, there is no

need for case-by-case approval of a reference to a magistrate judge. 

3. Bankruptcy Matters

While one circuit has held that "core" bankruptcy matters may be referred to magistrate judges with

the consent of the parties, other circuits have held that courts may not refer bankruptcy appeals to

magistrate judges for final decisions under § 636(c). Questions have also arisen as to whether it is

appropriate to refer bankruptcyappeals to magistrate judges forreports and recommendationssubject

to de novo review under § 636(b)(3). See also § 7(a)(5), supra.

5th Circuit:

Matter of Toyota of Jefferson, Inc., 14 F.3d 1088 (5th Cir. 1994)

A magistrate judge could preside over a bench trial in a "core" bankruptcy proceeding with

the consent of the parties under § 636(c) after the reference was withdrawn from the

bankruptcy court. 

Matter of Nix, 864 F.2d 1209 (5th Cir. 1989)

The consensual reference of a Chapter 7 "core" bankruptcy matter to a magistrate judge

under § 636(c) is permissible, but such references should only be made where compelling

need is shown.

7th Circuit:

In re Elcona Homes Corp., 810 F.2d 136 (7th Cir. 1987)

The Bankruptcy Act clearly establishes two routes of appeal: Congress did not provide for

magistrate judge review of bankruptcy court decisions.

10th Circuit:

Virginia Beach Fed. Sav. & Loan Ass'n. v. Wood, 901 F.2d 849 (10th Cir. 1990)

A magistrate judge is not permitted to enter a final decision in a bankruptcy appeal. A

magistrate judge may conduct an advisory hearing, provided a district judge issues the final

order.

December 2013 9 INVENTORY
4. Part-time Magistrate Judges

Section 636(c)(1) places limits on the use of part-time magistrate judges to try civil cases under the

Federal Magistrates Act: 

Upon the consent of the parties, pursuant to their specific written request, any ...

part-timemagistrate [judge] mayexercise such jurisdiction, if such magistrate [judge]

meets the bar membership requirements set forth in section 631(b)(1) and the chief

judge of the district court certifies that a full-time magistrate [judge] is not reasonably

available in accordance with guidelines established by the judicial council of the

circuit.

5th Circuit:

Mylett v. Jeane, 879 F.2d 1272 (5th Cir. 1989)

A party's failure to object to referral of the case to a part-time magistrate judge after the

parties consented to trial before a full-time magistrate judge constitutes a waiver of any

procedural defect.

10th Circuit:

Jurado v. Klein Tools, Inc., 755 F. Supp. 368 (D. Kan. 1991)

Section 636(c)(1) does not require a specific form or time of consent or even that consent be

in writing, except where a part-time magistrate judge is involved.

11th Circuit:

Sinclair v. Wainwright, 814 F.2d 1516 (11th Cir. 1987)

A part-time magistrate judge is not authorized to conduct a consensual civil trial if a full-time

magistrate judge is available.

5. Constitutionality of Consent Authority 

The constitutionality of a magistrate judge's consensual civil authority under § 636(c) has been

addressed by twelve of the thirteen courts of appeals. In general, all twelve have held that the Act

does not violate Article III of the Constitution, although in 2001 the Fifth Circuit held, in United

States v. Johnston, 258 F.3d 361 (5 Cir. 2001) th, that the consensual delegation of a federal prisoner's

motion attacking his conviction under 28 U.S.C. § 2255 for disposition by a magistrate judge under

28 U.S.C.§ 636(c) violated the doctrine of the separation of powers set forth in Article III of the

Constitution. In a more recent case, Technical Automation Services Corp. v. Liberty Surplus

InsuranceCorp., 673 F.3d 399 (5 Cir. 2012) th, a panel of the Fifth Circuit reaffirmed that magistrate

judges’ civil consent authority under 28 U.S.C. § 636(c) did not violate Article III of the

Constitution, despite the Supreme Court’s holding in Stern v. Marshall, 564 U.S. , 131 S.Ct. 2594

(2011)that Article III of the Constitution limited the authority of bankruptcy judges to rule on certain 

core proceedings that involved state law claims. 

December 2013 10 INVENTORY
Although the Supreme Court has not directly considered the constitutionality of § 636(c), its 2003

opinion in Roell v. Withrow, 538 U.S. 580 (2003), where the Court held that consent to disposition

by a magistrate judge under § 636(c) could be inferred from the parties' conduct in certain

circumstances, suggests that the Supreme Court does not have fundamental concerns about the

underlying constitutionality of this provision.

For an in-depth analysis of the cases discussing the constitutionality of consensual civil trial

authority of magistrate judges under § 636(c) , see A Constitutional Analysis of Magistrate Judge

Authority, 150 F.R.D. 247 (1993), which is also available as a pamphlet published by the Magistrate

Judges Division of the Administrative Office.

1st Circuit:

Goldstein v. Kelleher, 728 F.2d 32 (1st Cir.), cert. denied, 469 U.S. 852 (1984)

2d Circuit:

Collins v. Foreman, 729 F.2d 108 (2d Cir.), cert. denied, 469 U.S. 870 (1984)

3d Circuit:

Wharton-Thomas v. United States, 721 F.2d 922 (3d Cir. 1983)

Sinde v. Gerlinski, 252 F. Supp. 2d 144 (M.D. Pa. 2003)

The consensual delegation of a federal prisoner’s habeas corpus petition arising under 28

U.S.C. § 2241 for disposition by a magistrate judge under 28 U.S.C. § 636(c) did not violate

Article III of the Constitution. (Opinion by a magistrate judge.)

4th Circuit:

Gairola v. Com. of Va. Dept. of Gen. Serv., 753 F.2d 1281 (4th Cir. 1985)

5th Circuit:

Technical Automation Services Corp. v. Liberty Surplus InsuranceCorp., 673 F.3d 399 (5th 

Cir. 2012)

A three-judge panel of the Fifth Circuit held that magistrate judges’ civil consent authority

under 28 U.S.C. § 636(c) did not violate Article III of the Constitution. The court

emphasized the narrow nature of the Supreme Court’s holding in Stern v. Marshall, 564

U.S. , 131 S.Ct. 2594 (2011). The court further determined that it was bound by an earlier

Fifth Circuit panel’s ruling in Puryear v. Ede’s Ltd, 731 F.2d 1153 (5 Cir.1984 th), that had

held that magistrate judge civil consent authority under § 636(c) did not violate Article III.

[See Information Memorandum No. 322 for a more detailed summary of this case.]

White v. Thaler, 610 F.3d 890 (5th Cir. 2010)

A magistrate judge had authority to dispose of a state habeas corpus case arising under 28

U.S.C. § 2254 with the consent of the parties under 28 U.S.C. § 636(c) and this authority did

not violate the separation of powers under Article III of the Constitution. [See Information

Memorandum No. 317 for a more detailed summary of this case.]

December 2013 11 INVENTORY
United States v. Johnston, 258 F.3d 361 (5 Cir. 2001) th

The consensual delegation of a federal prisoner's motion attacking his conviction under 28

U.S.C. § 2255 for disposition by a magistrate judge under 28 U.S.C.§ 636(c) violates the

doctrine of the separation of powers set forth in Article III of the Constitution.

Puryear v. Ede's Ltd., 731 F.2d 1153 (5th Cir. 1984)

6th Circuit:

Norris v. Schotten, 146 F.3d 314 (6th Cir. 1998) (state habeas corpus petition)

Bell & Beckwith v. Internal Revenue Serv., 766 F.2d 910 (6th Cir. 1985)

K.M.C. Co., Inc. v. Irving Trust Co., 757 F.2d 752 (6th Cir. 1985)

7th Circuit:

Farmer v. Litscher, 303 F.3d 840 (7 Cir. 2002) th

The consensual delegation of a state prisoner’s habeas corpus petition arising under 28

U.S.C. § 2254 for disposition by a magistrate judge under 28 U.S.C. § 636(c) did not violate

Article III of the Constitution.

Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037 (7th Cir. 1984)

8th Circuit:

Orsini v. Wallace, 913 F.2d 474 (8th Cir. 1990), cert. denied, 498 U.S. 1128 (1991)

Lehman Bros. Kuhn Loeb, Inc. v. Clark Oil &Refining Corp., 739 F.2d 1313 (8th Cir. 1984),

cert. denied, 469 U.S. 1158 (1985) (habeas corpus petitions)

9th Circuit:

Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537 (9th Cir.)

(en banc), cert. denied, 469 U.S. 824 (1984) ("Pacemaker II")

The referral of a civil case for disposition by a magistrate judge with the consent of the

parties under § 636(c) does not violate Article III of the Constitution. The court en banc

reversed the original panel's decision in Pacemaker I that § 636(c) violates Article III. 

Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc, 712 F.2d 1305 (9th Cir.

1983) ("Pacemaker I")

The original panel ruling that § 636(c) violated Article III. 

11th Circuit:

Sinclair v. Wainwright, 814 F.2d 1516 (11th Cir. 1987) (habeas corpus petitions)

Campbell v. Wainwright, 726 F.2d 702 (11th Cir. 1984)

December 2013 12 INVENTORY
D.C. Circuit:

Fields v. Washington Metro. Area Transit Auth., 743 F.2d 890 (D.C. Cir. 1984)

Federal Circuit:

D. L. Auld Co. v. Chroma Graphics Corp., 753 F.2d 1029 (Fed. Cir. 1985), cert. denied, 474

U.S. 825 (1986)

An appeal challenging the constitutionality of § 636(c) was "abusive of the judicial process"

and grounds for an award of attorneys' fees against the party raising the issue.

B. Sufficiency of Parties' Consent

Sections 636(c)(1) and (2) do not specify what constitutes "consent of the parties" to magistrate

judge authority to try civil cases. Rule 73(b) of the Federal Rules of Civil Procedure, however,

requires civil litigants to "signify their consent" by requiring parties to "jointly or separately file a

statement consenting to the referral." Despite the seeming mandate of Rule 73 that parties' consent

under § 636(c) be in writing, courts continue to explore what constitutes adequate consent to

magistrate judge civil trial authority under § 636(c) in various circumstances, including whether

consent may be made orally or be construed from the parties' conduct. 

In 2003, the Supreme Court ruled in Roell v. Withrow, 538 U.S. 580 (2003) that consent to

disposition of a civil case under § 636(c) could be inferred from a litigant's conduct in certain

circumstances. The Court's Roell decision overruled many earlier court decisions that had held that

consent under § 636(c) could not be inferred from conduct, but must be clear, explicit, and on the

record. Lower courts have subsequently applied the Court's reasoning in Roell to determine what

kinds of conduct might be deemed sufficient to permit the inference of consent in different

circumstances. 

1. Form of Consent and Waiver of Right to Article III Judge

Supreme Court:

Roell v. Withrow, 538 U.S. 580 (2003)

The Supreme Court, in a 5-4 decision, held that a party’s consent to disposition by a

magistrate judge under 28 U.S.C. § 636(c) in a prisoner's civil rights cases under 42 U.S.C.

§ 1983 may be inferred from a party’s conduct during litigation. 

2d Circuit:

Yeldon v. Fisher, 710 F.3d 452 (2d Cir. 2013)

A pro se plaintiff in a prisoner civil rights case under 42 U.S.C. § 1983, who explicitly

indicated on the consent form at the beginning of his case that he did not consent to

disposition of his case by a magistrate judge, could not be found to have impliedly consented

to the magistrate judge’s authority under the reasoning of Roell v. Withrow, 538 U.S. 580

(2003), even though he participated in subsequent litigation before the magistrate judge. 

[See Information Memorandum No. 326 for a more detailed summary of this case.]

December 2013 13 INVENTORY
5th Circuit:

Lopez v. Holder, 563 F.3d 107 (5th Cir. 2009)

The parties’ consent to disposition of a habeas corpus case arising under 28 U.S.C. § 2241

by a magistrate judge did not continue after the case was transferred back to the district court

for further proceedings under the REAL ID Act and 8 U.S.C. § 1252(b)(5)(B). Accordingly,

the magistrate judge did not have authority to dispose of the case where the parties did not

renew their consent. [See Information Memorandum No. 313 for a more detailed summary

of this case.]

Kadonsky v. United States, 216 F.3d 499 (5th Cir. 2000)

The parties' consents to a magistrate judge's authority to dispose of a civil forfeiture case

were valid, even though the plaintiff did not execute the standard, commonly-used consent

form.

Hill v. City of Seven Points, 230 F.3d 167 (5th Cir. 2000)

Where the form referring a civil case to a magistrate judge with the parties' consent under 28

U.S.C. § 636(c) was not signed by a district judge, and where there was no automatic referral

of the case to a magistrate judge, the magistrate judge did not have jurisdiction to preside in

the case, thereby depriving the court of appeals of jurisdiction to hear the appeal.

E.E.O.C. v. West La. Health Serv., Inc., 959 F.2d 1277 (5th Cir. 1992)

Where two cases are consolidated for a single trial before a magistrate judge, the judgment

against a third party who did not consent to the magistrate judge's authority was invalid. 

Parks v. Collins, 761 F.2d 1101 (5th Cir. 1985)

A magistrate judge had no authority to decide a motion to set aside a default judgment. The

parties' assumption that their consent in the original case extended to post-trial matters was

insufficient without another order of reference from the district judge. 

7th Circuit:

Stevo v. Frasor, 662 F.3d 880 (7 Cir. 2011) th

The parties both explicitly and implicitly consented to have their case disposed of by a

magistrate judge under 28 U.S.C. § 636(c), even where the case was disposed of by a

different magistrate judge than the one the parties originally consented to and the reference

on consent was not docketed in the case when the case was reassigned to the second

magistrate judge. [See Information Memorandum No. 321 for a more detailed summary of

this case.]

Heft v. Moore, 351 F.3d 278 (7th Cir. 2003)

Following the Supreme Court's reasoning in Roell v. Withrow, 538 U.S. 580 (2003), the court

held that the parties' consent to disposition of the case by a magistrate judge could be inferred

from the parties' conduct during the litigation.

December 2013 14 INVENTORY
Hatcher v. Consolidated City of Indianapolis, 323 F.3d 513 (7 Cir. 2003) th

Where the parties signed a written document in which they agreed that the attorneys' fees

issue will be "resolved" by a magistrate judge, the document served as a reference to the

magistrate judge. There is nothing in § 636(c) requiring that any specific form be filled out,

nor was such a requirement found in the district's local rules. The word "resolve" can only

be interpreted as a consent to the entry of a judgment dealing with the disputed issues. 

American Suzuki Motor Corp. v. Bill Kummer, Inc., 65 F.3d 1381 (7th Cir. 1995)

Consent made orally on the record after the court asked all parties to clarifywhetherthey had

consented to trial before the magistrate judge was sufficient under § 636(c).

Mark I, Inc. v. Gruber, 38 F.3d 369 (7th Cir. 1994)

An attorney's vague oral statement before the court that he thought his client had consented

to disposition by the magistrate judge was insufficient to establish that the party's consent

was voluntary and unequivocal.

Lovelace v. Dall, 820 F.2d 223 (7th Cir. 1987)

The clear, unambiguous and explicit consent provisions of § 636(c)(1) and (2) do not require

that consent be in writing. An answer of "OK" to the magistrate judge's explanation of

consent procedure, however, was too ambiguous to constitute clear consent.

Jackson v. McKay-Davis Funeral Home, 2012 WL 5423739 (E.D. Wis. Nov. 6, 2012)

A case originally referred to a magistrate judge for disposition with the consent of the parties,

then reassigned to a district judge when a later defendant refused to consent, would not be

re-referred back to the magistrate judge, even though the non-consenting defendant had

participated in the litigation before the magistrate judge for several years, where the record

did not reflect that the defendant had been given sufficient notice of the need to consent to

disposition by the magistrate judge. The district judge noted that the defendant’s actions,

appearing voluntarily before that magistrate judge for four years and having “stood silent”

on two occasions when the magistrate judge “stated that theyhad consented to her authority,”

could arguably be deemed to have been implied consent under Roell v. Withrow, 538 U.S.

580 (2003), but concluded that the defendant’s explicit refusal to consent, even at the last

minute after four years of litigation before the magistrate judge, was binding in this situation

because the defendant was not specifically advised of its need to execute the consent form. 

[See Information Memorandum No. 326 for a more detailed summary of this case.] 

 

9th Circuit:

Wilhelm v. Rotman, 680 F.3d 1113 (9 Cir. 2012) th

A prisoner plaintiff’s execution of the district court’s form consenting to disposition by “a

United States magistrate judge” was sufficient to constitute consent to have the case disposed

of by another magistrate judge after the case was reassigned from the magistrate judge who

originally received the referral. In addition, the plaintiff’s conduct during litigation before

the second magistrate judge constituted implied consent to disposition of the case by the

magistrate judge under the Supreme Court’s reasoning in Roell v. Withrow, 538 U.S. 580

December 2013 15 INVENTORY
(2003), even if the consent form signed by the plaintiff was in some way defective. [See

Information Memorandum No. 323 for a more detailed summary of this case.]

Anderson v. Woodcreek Venture Ltd, 351 F.3d 911 (9 Cir. 2003) th

The Ninth Circuit, interpreting the Supreme Court’s decision in Roell v. Withrow, 538 U.S.

580 (2003), held that a pro se litigant’s conduct did not appear to constitute clear,

unambiguous, and voluntary consent to disposition by a magistrate judge under 28 U.S.C.

§ 636(c), thereby requiring remand to the district court for further proceedings. 

DiSibio v. Bank of Oakland, 71 Fed. Appx. 760 (9 Cir. 2003) th, 

The Ninth Circuit, applying the Supreme Court’s reasoning in Roell v. Withrow, 538 U.S.

580 (2003), held that parties would be presumed to have consented to a magistrate judge

conducting a settlement conference by appearing and participating in the conference.

Kofoed v. International Broth. of Elec. Workers, Local 48, 237 F. 3d 1001 (9th Cir. 2001)

Where the record reflected that the parties gave express oral consent to the magistrate judge's

jurisdiction under § 636(c) while theywere before the magistrate judge, and before the judge

made a case-dispositive ruling, the magistrate judge was acting with the parties' consent and

had proper authority when he entered a final judgment.

Brodzki v. United States, 2012 WL 2361727 (N.D. Cal. January 26, 2012)

A magistrate judge ruled that a pro se plaintiff’s execution of a consent form in one case,

combined with his conduct before the magistrate judge in a second parallel case, was

sufficient to constitute consent to disposition of the second case by the magistrate judge

under the Supreme Court’s reasoning in Roell v. Withrow, 538 U.S. 580 (2003). [See

Information Memorandum No. 323 for a more detailed summary of this case.]

11th Circuit:

Chambless v. Louisiana-Pacific Corp., 481 F.3d 1345 (11th Cir. 2007)

Applying the Supreme Court's reasoning in Roell v. Withrow, 538 U.S. 580 (2003), the court

held that the plaintiff's original consent to disposition of her Title VII case by a magistrate

judge under 28 U.S.C. § 636(c), combined with her conduct during pretrial proceedings

before the magistrate judge in her second, related civil rights employment case, together

would be construed to constitute consent to having the magistrate judge dispose of the

second case.

D.C Circuit:

Baker v. Socialist People’s Libyan Arab Jama-Hirya, 810 F. Supp. 2d 90 (D.D.C. 2011)

A magistrate judge ruled that the defendants’ willful default after being properly served with

the plaintiffs’ complaint constituted implied consent to have the magistrate judge dispose of

the case under 28 U.S.C. § 636(c), including the entry of a default judgment, under the

Supreme Court’s reasoning in Roell v. Withrow, 538 U.S. 580 (2003). [See Information

Memorandum No. 321 for a more detailed summary of this case.]

December 2013 16 INVENTORY
Warren v. Thompson, 224 F.R.D. 236 (D.D.C. 2004)

A magistrate judge held that plaintiff’s acquiescence to actions of her attorneyduring pretrial

matters and subsequent jury trial constituted voluntary consent to disposition of her Title VII

case by the magistrate judge under the Supreme Court’s reasoning in Roell v. Withrow, 538

U.S. 580 (2003).

2. Authority of Counsel to Consent On Behalf of Parties

Courts have disagreed as to whether counsel may consent on a party's behalf under § 636(c), or

whether consent under § 636(c) must be made specifically by the parties themselves.

2d Circuit:

Woo v. City of New York, 1997 WL 277368 (S.D.N.Y. 1997)

A party was bound by his attorney's consent to proceedings before a magistrate judge under

28 U.S.C. § 636(c). (Opinion by a magistrate judge.)

3d Circuit:

Frank v. County of Hudson, 962 F. Supp. 41 (D.N.J. 1997)

The general rule that an attorney has authority as an agent to bind the client on actions taken

within the scope of the attorney's authority applies to an attorney's consent to proceed before

a magistrate judge under § 636(c).

5th Circuit:

United States v. Klat, 180 F.3d 264 (5th Cir. 1999)

The defendant was bound by his previous counsel's consent to disposition of the civil mental

competency proceeding by a magistrate judge under § 636(c), even though the defendant

filed a subsequent pro se objection to disposition of the case by the magistrate judge three

days before the hearing. The magistrate judge was not required to inquire at the hearing

whether the defendant personally consented to the referral because the signed consent form

satisfied the requirement that consent be on the record. 

7th Circuit:

Lakeside Feeders, Ltd. v. Chicago Meat Processors, Inc., 35 F. Supp. 2d 638 (N.D. Ill. 1999)

A party would be bound by its counsel's consent to disposition of the case by a magistrate

judge under § 636(c), and previous counsel's alleged ignorance of the party's right to trial

before a district judge was not an excuse that justified reconsideration of the district judge's

denial of the motion to vacate the reference.

Mark I, Inc. v. Gruber, 38 F.3d 369 (7th Cir. 1994)

A vague oral statement by counsel that his client had consented to trial before a magistrate

judge did not satisfy the standard that a party's consent be explicit and unambiguous. The

magistrate judge thus lacked authority to enter a final judgment.

December 2013 17 INVENTORY
Williams v. Romero, 7 F.3d 239 (7th Cir. 1993) (Table disposition -- text available on

WESTLAW)

An attorney's signature on the consent form made without the client's knowledge did not bind

the client to disposition of the case by the magistrate judge, because the attorney lacked

authority to consent on client's behalf. 

9th Circuit:

Gomez v. Vernon, 255 F. 3d 1118 (9th Cir. 2001)

The warden of a prison in a prisoner civil rights case under 42 U.S.C. § 1983 was deemed

to have consented to disposition of the case by a magistrate judge, even though he was not

originally a named party to the case, where the original warden had consented and counsel

for the prison made stipulations and otherwise acted on the warden's behalf in a manner that

suggested that the warden had consented to the magistrate judge's authority.

10th Circuit:

Parker v. Bancoklahoma Mortgage Co., 113 F.3d 1246 (10th Cir. 1997)

Where the client did not deny that his attorney signed the consent form, remained silent when

the matter was raised at trial, and did not establish that his attorney lacked authority to

consent, the party would be bound by the magistrate judge's disposition of the case.

Jurado v. Klein Tools, Inc., 755 F. Supp. 368 (D. Kan. 1991)

An attorney may consent on behalf of the client to trial before a magistrate judge under

§ 636(c).

11th Circuit:

Bismark v. Fisher, 213 Fed. Appx. 892 (11 Cir. 2007) th

Although the consent form signed by counsel suffered from “non-trivial irregularities,” the

overall circumstances established that the parties expressly consented to disposition of the

case by the magistrate judge under 28 U.S.C. § 636(c). In the ordinary case, express consent

should be commemorated via a filed, fully executed written consent form or by the parties’

oral expression of consent during a hearing on the record. 

Barnett v. General Electric Capital Corp., 147 F.3d 1321 (11th Cir.1998)

An attorney's oral statement that he would recommend to his client that she consent to

disposition by a magistrate judge and that he did not foresee problems in obtaining the

client's consent did not constitute clear and unambiguous consent to magistrate judge's

authority under § 636(c). 

General Trading Inc. v. Yale Materials Handling Corp., 119 F.3d 1485 (11th Cir. 1997)

Where the attorneys signed a consent form and the parties did not object to the magistrate

judge's authority to dispose of the case when the issue of consent was raised before them at

a status conference held before the magistrate judge, the parties would be bound by the

magistrate judge' disposition of the case. 

December 2013 18 INVENTORY
D.C Circuit:

Warren v. Thompson, 224 F.R.D. 236 (D.D.C. 2004)

A magistrate judge held that the plaintiff’s acquiescence to actions of her attorney during

pretrial matters and subsequent jury trial constituted voluntary consent to disposition of her

Title VII case by the magistrate judge under the Supreme Court’s reasoning in Roell v.

Withrow, 538 U.S. 580 (2003).

Morrison v. International Programs Consortium, Inc., 205 F.R.D. 61 (D.D.C. 2002)

A joint document filed by the plaintiff's counsel and an attorney who filed an answer on

behalf of the defendants stating that the parties were willing to have the case assigned to a

magistrate judge did not satisfy the requirement of written consent to exercise of jurisdiction

by the magistrate judge, where the attorney for the defendants had authority to file the

answer, but his authority to also waive the right to trial before an Article III judge was not

clear. (Opinion by a magistrate judge.)

3. Necessity of Consent by All Parties

As a general proposition, all parties must consent under § 636(c) before a magistrate judge has

authority to dispose of a civil case. Nevertheless, some courts have held that there are certain

circumstances where a magistrate judge may have authority to dispose of a civil case, even where

some individuals or entities affected by the litigation have not consented to disposition of the case

a the magistrate judge.

2d Circuit:

Stackhouse v. McKnight, 168 Fed. Appx. 464 (2d Cir. 2006)

A magistrate judge did not have authority to rule on a motion to intervene in a class action

case where the parties seeking to intervene had not consented to disposition of the case by

a magistrate judge. 

New York Chinese TV Programs, Inc. v. U.E. Enter., Inc., 996 F.2d 21 (2d Cir. 1993)

The intervenors' consent must be obtained before a magistrate judge may enter a final

decision that binds the intervening parties.

4th Circuit:

Halsey v. Sams, 37 F.3d 1493 (4th Cir. 1994) (Table disposition -- text available on

WESTLAW)

Because not all the parties consented to disposition by the magistrate judge, the case was

remanded to a district judge. Absent consent from all parties, the appellate court was without

jurisdiction to hear plaintiff's appeal because the magistrate judge acted beyond the scope of

his authority.

Cappetta v. GC Limited Services Partnership, 2009 WL 482474 (E.D. Va. Feb. 24, 2009)

Magistrate judge rules that unnamed putative class members need not affirmatively consent

to magistrate judge's jurisdiction under § 636(c) in order for the magistrate judge to have

December 2013 19 INVENTORY
authority to rule in the class action case where the named parties may consent to disposition

of case by a magistrate judge on behalf of the entire class, even when the consent occurs

before class certification.

5th Circuit:

Neals v. Norwood, 59 F.3d 530 (5th Cir. 1995)

Where a prisoner plaintiff consented to disposition of his 42 U.S.C. § 1983 case by a

magistrate judge under § 636(c), the defendant's consent was not needed before the plaintiff's

complaint could be dismissed if the defendants have not yet been served with the complaint.

E.E.O.C. v. West La. Health Serv., Inc., 959 F.2d 1277 (5th Cir. 1992)

The consent requirements of § 636(c) were not met when two cases were consolidated for

one trial before a magistrate judge, but a third party did not explicitly consent to trial before

the magistrate judge.

Murret v. City of Kenner, 894 F.2d 693 (5th Cir. 1990)

The consent requirements of § 636(c) are not met where the original parties consented in

writing to trial before the magistrate judge, but additional parties joined subsequently to the

case did not consent.

Archie v. Christian, 808 F.2d 1132 (5th Cir. 1987)

Trial before a magistrate judge where one party failed to consent constitutes a procedural

error. The failure to raise the issue on appeal, however, waives the error. 

Caprera v. Jacobs, 790 F.2d 442 (5th Cir. 1986)

A magistrate judge did not have authority to conduct the trial where additional defendants

added byan amended complaint did not expresslyconsent to the magistrate judge's authority. 

Consent cannot be inferred by a party's failure to object, and parties do not waive their right

to Article III adjudication by remaining silent.

Altier v. Worley Catastrophe Response, L.L.C., 2012 WL 161824 (E.D. La. January 18,

2012)

A magistrate judge ruled that he had authority to issue an order denying a motion for leave

to intervene in the case by five non-parties where the other parties in the class action had

consented to disposition of the case by the magistrate judge under 28 U.S.C. § 636(c), even

though the non-parties had not consented to the magistrate judge’s authority. [See

Information Memorandum No. 323 for a more detailed summary of this case.]

6th Circuit:

Jack Tyler Engineering Co. v. Colfax Corp., 2011 WL 384614 (W.D. Tenn. February 3,

2011)

A magistrate judge did not have authority under § 636(c) to rule on a motion for default

judgment where the defendant had not consented to have the matter disposed of by the

December 2013 20 INVENTORY
magistrate judge. [See Information Memorandum No. 319 for a more detailed summary of

this case.]

7th Circuit:

Heft v. Moore, 351 F.3d 278 (7th Cir. 2003)

A magistrate judge had jurisdiction over the case, even where some of the defendants who

had been dismissed from the case had not formally consented to disposition of the case by

the magistrate judge, where consent could be inferred fromdefendants' conduct prior to being

dismissed from the case and where the plaintiff had essentially abandoned her claims against

the defendants who had not formally consented.

Rice v. Sunrise Express, Inc., 209 F.3d 1008 (7th Cir. 2000)

A magistrate judge had authority to dispose of the case where the district court had granted

a motion to sever one defendant from the case that had not consented to disposition by the

magistrate judge. The district court had authority to issue a nunc pro tunc order after the trial

to clarify the record that the trial before the magistrate judge did not resolve claims against

the severed defendant, thereby establishing that the magistrate judge had authority under §

636(c) to resolve the case against the remaining defendants.

Williams v. Gen. Elec. Capital Auto Lease, Inc., 159 F.3d 266 (7th Cir. 1998)

Absent class members in a class action case where the parties consented to disposition by a

magistrate judge were not "parties" before the court in the sense of being able to direct the

litigation. The named representative is the "party" who acts on behalf of the entire class, and

has inherent authority to decide whether to proceed before a magistrate judge. The

magistrate judge acting under the consent given by the named class representative therefore

had authority to enjoin the further prosecution of a similar class action brought in another

jursidiction by unnamed class members, even though the unnamed members did not consent

to submission of their case to a magistrate judge.

Brook, Weiner, Sered, Kreger, & Weinberg v. Coreq, Inc., 53 F.3d 851 (7th Cir. 1995)

The consent to disposition by a magistrate judge by the original parties in a case was binding

upon any successor party. A successor takes over without any other change in the status of

the case.

Atlantic Mut. Ins. Co. v. Northwest Airlines, Inc., 24 F.3d 958 (7th Cir. 1994)

The court upheld the magistrate judge's denial of a proposed intervenor's motion to

reconsider judgment after the case had been settled, even though the intervenor did not

consent to the authority of the magistrate judge. Even though the court expressed doubts

about a non-Article III judge making a final decision against a litigant absent the litigant's

consent, it concluded that the decision was valid because proposed intervenor was not a party

to the case and no valid case or controversy remained.

December 2013 21 INVENTORY
Jaliwala v. United States, 945 F.2d 221 (7th Cir. 1991)

In a replevin action involving foreign parties, consent must be obtained from all parties

before the magistrate judge may enter final judgment enforceable against all parties.

8th Circuit: 

Henry v. Tri-Services, Inc., 33 F.3d 931 (8th Cir. 1994)

A magistrate judge did not have authority to enter final default judgment where a party had

not entered an appearance in the action when other parties had consented to trial before the

magistrate judge.

Giove v. Stanko, 882 F.2d 1316 (8th Cir. 1989), cert. denied, 494 U.S. 1081 (1990)

In a plaintiff's garnishment action to enforce a default judgment, the defendant, as judgment

debtor, was not considered a partyto the garnishment proceeding, so his failure to appear and

consent did not deprive the magistrate judge of authority.

Jones v. City of St. Louis, 217 F.R.D. 490 (E.D. Mo. 2003)

A magistrate judge granted a motion to sever a party from the litigation that had refused to

appear, that had not responded to the plaintiff's pleadings, and that had not consented to the

magistrate judge's authority under § 636(c). In granting the motion to sever, the magistrate

judge retained jurisdiction to resolve the remaining claims against the other defendant that

had consented to disposition by the magistrate judge. (Opinion by a magistrate judge.)

 

9th Circuit:

Irwin v. Mascott, 370 F.3d 924 (9 Cir. 2004) th

A magistrate judge presiding with the parties' consent had authorityto hold a non-party liable

for contempt sanctions for violating an injunction issued in a class action case where the

named parties served as the non-party’s virtual representative. 

United States v. Real Property, 135 F.3d 1312 (9th Cir. 1998)

A magistrate judge had authority to enter a default judgment in a civil in rem forfeiture

proceeding under § 636(c), even where the property's owner did not consent to the magistrate

judge's dispositional authority, because the property owner did not perfect his claim to the

property when provided an opportunity to do so.

Matter of Litigation Relating to Riot of Sept. 22, 1991 at Maximum Sec. Unit of Montana

State Prison, 85 F.3d 637 (9th Cir. 1996)(Table disposition -- text available on WESTLAW) 

When additional parties were joined in prisoner litigation, the magistrate judge did not have

jurisdiction over the entire action without the additional parties' consent.

Walston v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 2012 WL 2049451 (D. Or. June 6,

2012), 

A magistrate judge in the District of Oregon ruled that the consent of the debtor and certain

defendants in two state court actions related to a garnishment action in federal court were not

necessary for the magistrate judge to have authority to dispose of the federal court

December 2013 22 INVENTORY
garnishment action under 28 U.S.C. § 636(c) because they had chosen not to intervene in the

case and thus were not parties to the litigation. [See Information Memorandum No. 325 for

a more detailed summary of this case.]

Arnold v. Arizona Dept. Of Public Safety, 233 F.R.D. 537 (D. Ariz. 2005)

Where all named parties had consented to disposition of the class action case by the

magistrate judge, the magistrate judge had authority over all members of the class and

therefore had authority to consider motions to certify the class and approve a tentative

settlement agreement. (Opinion by a magistrate judge.)

Hangarter v. Paul Revere Life Ins. Co., 289 F. Supp. 2d 1105 (N.D. Cal. 2003)

After the magistrate judge denied the defendant's motion for leave to conduct discovery as

an improper attempt without leave of court to amend the original complaint to add new

plaintiffs after the entry of judgment, and as improper forum shopping, the magistrate judge

granted the defendant's motion to reassign the case to a district judge since new claims were

raised and the defendants did not consent to have the presiding magistrate judge dispose of

these claims.

4. Time to File Consent

7th Circuit:

Smith v. Shawnee Library System, 60 F.3d 317 (7th Cir. 1995) 

The parties' consent to disposition by a magistrate judge was valid, even when it was

submitted nine years after the magistrate judge had assumed responsibility for the case and

after completion of oral argument on the appeal of the magistrate judge's summary judgment

order.

King v. Ionization Int'l, Inc, 825 F.2d 1180 (7th Cir. 1987)

Consent entered several weeks after the conclusion of the post-judgment proceeding was

sufficient under § 636(c).

Adams v. Heckler, 794 F.2d 303 (7th Cir. 1986)

A written consent form executed on the day scheduled for the hearing is clear, unambiguous

and explicit, and not intrinsically coercive. Although failure to consent would have resulted

in referral of the matter to the magistrate judge for a report and recommendation under

§ 636(b)(1)(B), an assumption that a party would be prejudiced by magistrate judge's

knowledge of their refusal to consent is unwarranted.

5. Authority to Substitute a Different Magistrate Judge Without the Parties'

Consent

If the consent form signed by the parties does not specify the magistrate judge who will dispose of

the case, another magistrate may be substituted without obtaining an additional consent from the

December 2013 23 INVENTORY
parties. Another magistrate judge may not be substituted, however, where the consent form states

that a specific magistrate judge will preside.

1st Circuit:

MacNeil v. Americold Corp., 735 F. Supp. 32 (D. Mass. 1990)

Where the consent form signed by the parties stated only that the case would be referred to

a magistrate judge, another magistrate judge could be substituted for the first one assigned

the case. Referral of the case to another magistrate judge did not constitute "extraordinary

circumstances" justifying that the referral be vacated.

2d Circuit:

Astra USA v. Bildman, 2010 WL 1731815 (D. Vt. April 30, 2010)

Where the magistrate judge to whom the parties consented to dispose of their case retired and

the case was reassigned to another magistrate judge, the new magistrate judge retained

authority to dispose of case where the parties' original consent form did not specify the name

of the magistrate judge to whom they were consenting.

5th Circuit: 

Hester v. Graham, Bright, & Smith, P.C., 289 Fed. Appx. 35 (5th Cir. 2008)

Where the plain language of the consent document signed by both parties indicated that the

parties consented to have any magistrate judge preside in their case, not just the initial

magistrate judge assigned the case who subsequently retired, the magistrate judge to whom

the court transferred the case had authority to dispose of the case under § 636(c), even though

the parties did not execute a new consent document specifically naming that magistrate

judge. 

Mendes Junior International Co. v. M/V Sokai Maru, 978 F.2d 920 (5th Cir. 1992)

When a civil case is assigned to a particular magistrate judge who is subsequently appointed

to another judgeship, the parties must consent again before a second magistrate judge may

render a final decision in the case.

O'Neal Bros. Const. Co. v. Circle, Inc., 1994 WL 658468 (E.D.La. 1994)

When the first magistrate judge assigned the case was killed, the court could refer the case

to another magistrate judge where the consent form did not specify which magistrate judge

would dispose of the case.

7th Circuit:

Stevo v. Frasor, 662 F.3d 880 (7 Cir. 2011) th

The parties both explicitly and implicitly consented to have their case disposed of by a

magistrate judge under 28 U.S.C. § 636(c), even where the case was disposed of by a

different magistrate judge than the one the parties originally consented to and the reference

on consent was not docketed in the case when the case was reassigned to the second

magistrate judge. [See Information Memorandum No. 321 for a more detailed summary of

this case.]

December 2013 24 INVENTORY
Hatcher v. Consolidated City of Indianapolis, 323 F.3d 513 (7 Cir. 2003) th

A provision in a settlement agreement that outstanding legal fees issues would be referred

to a named magistrate judge for mediation and resolution constituted an improper form of

“judge shopping,” requiring remand to the district court.

Kalan v. City of St. Francis, 274 F.3d 1150 (7 Cir. 2001) th

Where the parties consented to disposition by a particular named magistrate judge under 

§ 636(c), the consent does not carry over when the case subsequentlywas assigned to another

magistrate judge.

9th Circuit:

Wilhelm v. Rotman, 680 F.3d 1113 (9 Cir. 2012) th

A prisoner plaintiff’s execution of the district court’s form consenting to disposition by “a

United States magistrate judge” was sufficient to constitute consent to have the case disposed

of by another magistrate judge after the case was reassigned from the magistrate judge who

originally received the referral. In addition, the plaintiff’s conduct during litigation before

the second magistrate judge constituted implied consent to disposition of the case by the

magistrate judge under the Supreme Court’s reasoning in Roell v. Withrow, 538 U.S. 580

(2003), even if the consent form signed by the plaintiff was in some way defective. [See

Information Memorandum No. 323 for a more detailed summary of this case.]

Stokes v. Jordan, 95 F.3d 1158 (9th Cir. 1996) (Table disposition -- text available on

WESTLAW)

Where the consent form stated that the case would be disposed of by "a full-time magistrate

judge," the case could be referred to anothermagistrate judge despite the plaintiff's objection.

6. "Opt Out" Consent Procedures

In the 1990s, several courts experimented with "opt out" consent procedures for referring civil cases

to magistrate judges, whereby parties were deemed to have consented to disposition of the case by

the magistrate judge if they did not object to the assignment within a set period of time. The courts

that considered these procedures in published opinions, however, disapproved of the practice. The

Supreme Court's opinion in Roell v. Withrow, 538 U.S. 580 (2003), holding that a party’s consent

to disposition by a magistrate judge under 28 U.S.C. § 636(c) may, in some instances, be inferred

from the party’s conduct during litigation, appears to have encouraged at least one court to revive

the use of "opt out" consent procedures. 

4th Circuit:

Excel Indus., Inc. v. Eastern Express, Inc., 72 F.3d 126 (4th Cir. 1995) (Table disposition --

text available on WESTLAW) 

The "opt out" procedure used in the district court to obtain the parties' consent to final

disposition of the case bya magistrate judge under § 636(c) did not "protect the voluntariness

of [the litigants'] consent" and was therefore improper under the Federal Magistrates Act.

December 2013 25 INVENTORY
9th Circuit:

Nasca v. Peoplesoft, 160 F.3d 578 (9th Cir. 1998)

“Consent by failure to object” as provided for in the district court’s local rule was insufficient

to clothe the magistrate judge with § 636(c) powers. Consent may not be inferred from the

conduct of the parties, even where that conduct or lack of conduct may have been invited by

a general local rule of the district court.

Aldrich v. Bowen, 130 F.3d 1364 (9th Cir. 1997)

A final judgment issued by a magistrate judge in a civil case assigned to him under an “opt

out” consent procedure was a nullity. The magistrate judge had no jurisdiction to hear the

case without the written consent from the parties under 28 U.S.C. § 636(c)(1) and Fed. R.

Civ. P. 73. 

Matter of Litigation Relating to Riot of Sept. 22, 1991 at Maximum Sec. Unit of Montana

State Prison, 85 F.3d 637 (9th Cir. 1996)(Table disposition -- text available on WESTLAW) 

A district local rule providing for an "opt out" consent procedure for civil cases referred to

a magistrate judge under § 636(c) could not be invoked to presume additional defendants'

consent in a multi-party case where the original parties explicitly consented to the magistrate

judge's authority.

11th Circuit:

McNab v. J. & J. Marine, Inc., 240 F. 3d 1326 (11th Cir. 2001)

A district court's "opt out" procedure that provided for "consent through inaction" was

invalid and insufficient to establish the "express" and "on the record" consent statutorily

required to empower a magistrate judge to act under 28 U.S.C. § 636(c). The magistrate

judge therefore lacked authority to issue a final disposition in this case, and the orders issued

by the magistrate judge were thus not final and appealable. 

Rembert v. Apfel, 213 F.3d 1331 (11th Cir. 2000)

Where a magistrate judge presided in a social security appeal assigned under an "opt out"

consent procedure, the magistrate judge lacked authority to render a final judgment, and

therefore the appellate court did not have jurisdiction to consider the case on appeal.

Little Bend River Co., Inc. v. Molpus Timberlands Management, L.L.C., 2005 WL 2897400

(S.D. Ala. 2005)

Citing the Supreme Court's reasoning in Roell v. Withrow, 538 U.S. 580 (2003), a magistrate

judge held that the parties had implicitly consented to his jurisdiction under § 636(c) by

failing to object to the referral of the case to a magistrate judge within the time period

provided under the district's "opt out" consent procedure. 

C. Vacating a Reference to Magistrate Judge

Section 636(c)(4) provides that "the court" may subsequently vacate the reference to a magistrate

judge in two instances: (1) for good cause shown on the court's motion; or (2) under extraordinary

December 2013 26 INVENTORY
circumstances shown by any party. Fed. R. Civ. P. 73 follows the statutory language, stating that

"[o]n its own for good cause - or when a party shows extraordinary circumstances - the district

judge may vacate a referral to a magistrate judge under this rule." Since neither "good cause" nor

"extraordinarycircumstances" are defined in the Federal Magistrates Act, courts have had to interpret

the provision.

1. Right of the Parties to Withdraw Consent

2d Circuit:

Fellman v. Fireman's Fund Ins. Co., 735 F.2d 55 (2d Cir. 1984)

The parties' request to withdraw their consent to trial before a magistrate judge was

insufficient. Once a matter is referred to a magistrate judge, the reference can only be

withdrawn by a district judge under § 636(c)(4).

Pullano v. Old Carco Liquidation Trust, 2011 WL4498383 (W.D.N.Y. September 27, 2011)

Where a defendant sought to have consensual referral of case to a magistrate judge

withdrawn by moving for reconsideration of district judge’s previous referral of the case

under Fed. R. Civ. P. 73, the district judge denied the motion, rejecting the argument that the

referral of the civil case under Rule 73 was void ab initio if all parties did not explicitly

consent to the referral under the rule. [See Information Memorandum No. 323 for a more

detailed summary of this case.]

5th Circuit:

Sockwell v. Phelps, 906 F.2d 1096 (5th Cir. 1990)

Once a litigant's right to an Article IIIjudge is knowingly and voluntarilywaived, the litigant

has no right to recant at will.

Carter v. Sea Land Serv., 816 F.2d 1018 (5th Cir. 1987)

Litigants have no absolute right to withdraw consent to trial before a magistrate judge. The

court lists several factors for a district judge to consider when deciding a motion to withdraw

consent under § 636(c)(4).

6th Circuit:

Forsyth v. Brigner, 156 F.3d 1229 (6th Cir. 1998) (Table disposition -- text available on

WESTLAW)

Once a civil case is referred to a magistrate judge under § 636(c), a party has no absolute

right to withdraw consent to trial and other proceedings before a magistrate judge.

9th Circuit:

Dixon v. Ylst, 990 F.2d 478 (9th Cir. 1993)

A party cannot simply withdraw consent at will. The court will only consider withdrawal of

consent upon a party's motion with a showing of extraordinary circumstances justifying

withdrawal.

December 2013 27 INVENTORY
10th Circuit:

Jurado v. Klein Tools, Inc., 755 F. Supp. 368 (D. Kan. 1991)

A party has no right to withdraw consent at will, but the district court may allow withdrawal

upon a showing of good cause.

2. Authority of Magistrate Judge to Rule on Motion to Withdraw Consent

Although Fed. R. Civ. P. 73 specifically states that the "district judge" may vacate a reference under

§ 636(c), § 636(c) itself states that "[t]he court" may vacate the reference. Courts have disagreed 

about whether a magistrate judge has authority under the statute or Rule 73 to rule on a party's

motion to withdraw a reference under § 636(c).

2d Circuit:

Fellman v. Fireman's Fund Ins. Co., 735 F.2d 55 (2d Cir. 1984)

Once a matter is referred to a magistrate judge, the reference can only be withdrawn by a

district judge under § 636(c)(4).

4th Circuit:

Dowell v. Blackburn, 776 F. Supp. 283 (W.D. Va. 1991), appeal dismissed, 4 F.3d 984 (4th

Cir. 1993)

A magistrate judge has no authority to rule on a motion to vacate a reference under

§ 636(c)(4). Only a district judge may rule on such a motion.

5th Circuit:

Lyn-Lea Travel Corp. v. American Airlines, Inc., 283 F.3d 282 (5th Cir. 2002)

A magistrate judge did not abuse her discretion when she denied plaintiff's motion seeking

to rescind its consent to disposition by the magistrate judge, when the motion was filed

almost two years after it had executed its consent to proceed before the magistrate judge. 

6th Circuit:

Moses v. Sterling Commerce (America), Inc, 122 Fed. Appx. 177 (6 Cir. 2005) th

The authority of a magistrate judge under § 636(c) included authority to rule on a party's

motion to vacate the reference to the magistrate judge.

10th Circuit:

Rivera v. Rivera, 216 F.R.D. 655 (D. Kan. 2003)

Although a magistrate judge may permit a party to withdraw consent to proceed before a

magistrate judge in a civil case, the magistrate judge does not have jurisdiction to deny a

motion to withdraw consent. Fed. R. Civ. P. 73(b) specifically allows "[t]he district judge"

to "vacate a reference ... to a magistrate judge," and the district judge retains "residual

authority" to vacate the order of reference. (Opinion by a magistrate judge.)

December 2013 28 INVENTORY
3. Extraordinary Circumstances Shown by Any Party

1st Circuit:

MacNeil v. Americold Corp., 735 F. Supp. 32 (D. Mass. 1990)

Although the magistrate judge's alleged bias is a factor that may be considered in vacating

a reference under § 636(c)(4), Congress did not intend this section to be used as an

alternative to 28 U.S.C. § 144 and 28 U.S.C. § 455 for the disqualification of judicial

officers.

Ouimette v. Moran, 730 F. Supp. 473 (D.R.I. 1990)

Habeas corpus petitions as a class of cases do not provide "extraordinary circumstances" to

vacate a reference to a magistrate judge. The court lists several factors to consider in

determining "extraordinarycircumstances" and "good cause" for withdrawing consent to trial

before a magistrate judge under § 636(c)(4).

Swallow Turn Music v. Tidal Basin, Inc., 581 F.Supp. 504 (D. Me. 1984)

Questions about the constitutionality of the Federal Magistrates Act do not constitute

"extraordinary circumstances" justifying withdrawal of the reference. 

3d Circuit:

Frank v. County of Hudson, 962 F.Supp. 41 (D.N.J. 1997)

A magistrate judge's alleged hostility toward the plaintiff's counsel, and other conduct and

demeanor that the plaintiff believed demonstrated bias, did not constitute either

"extraordinary circumstances" or "good cause" to vacate referral of the case to the magistrate

judge under § 636(c)(4).

Leab v. Cincinnati Ins. Co., 1997 WL 736865 (E.D. Pa. 1997)

Friction between an attorney and a magistrate judge at trial, and disagreement with the

magistrate judge's rulings, do not constitute "extraordinary circumstances" to support

vacating the reference.

4th Circuit:

Smith v. Conn. Mut. Life Ins. Co., 45 F.3d 427 (4th Cir. 1995) (Table disposition -- text

available on WESTLAW) 

Where the plaintiff consented to disposition by a magistrate judge on the same day he

received the magistrate judge's report under § 636(b)(1)(B) recommending that the case be

dismissed, the plaintiff's disagreement with the magistrate judge's recommendation did not

constitute extraordinary circumstances warranting withdrawal of the parties' consent. 

J.S., ex rel. Duck v. Isle of Wight County School Bd., 368 F. Supp. 2d 522 (E.D. Va. 2005)

Where the magistrate judge had expressly retained jurisdiction over the case for purposes of

enforcing the terms of the final order entered in an earlier case involving the same parties,

and clearly had authority to do so, extraordinary circumstances did not exist to justify the

December 2013 29 INVENTORY
plaintiff's motion to vacate the reference of the case involving enforcement of the settlement

agreement to the magistrate judge under § 636(c). 

Dowell v. Blackburn, 776 F. Supp. 283 (W.D. Va. 1991), appeal dismissed, 4 F.3d 984 (4th

Cir. 1993)

Adverse decisions bythe magistrate judge on the plaintiff's pretrial motions did not constitute

"extraordinary circumstances" justifying the withdrawal of the reference. 

5th Circuit:

Lyn-Lea Travel Corp. v. American Airlines, Inc., 283 F.3d 282 (5th Cir. 2002)

A party's argument that its consent should be rescinded because it had expressly conditioned

its consent on its right to appeal to a district judge rather than to the appellate court did not

constitute extraordinary circumstances justifying vacating the referral. 

Murret v. City of Kenner, 894 F.2d 693 (5th Cir. 1990)

The failure of all parties to consent to trial before the magistrate judge constituted

"extraordinary circumstances" justifying withdrawal of the reference.

Nugent v. Bd. of Comm'rs of the East Jefferson Levee Dist., 1998 WL 726261 (E.D. La.

1998)

The magistrate judge's alleged lack of sympathy or compassion for the plaintiff did not

constitute extraordinary circumstances justifying the plaintiff's motion to revoke her consent

under § 636(c). (Opinion by a magistrate judge.)

6th Circuit:

United States v. Real Property Known & Numbered as 415 East Mitchell Ave., Cincinnati,

Ohio, 149 F.3d 472 (6th Cir. 1998)

Where the magistrate judge presiding in a civil forfeiture case had previously served as the

municipal court judge who issued the original warrant ordering seizure of the property at

issue in the case, and the claimant was aware of this situation and did not move to have the

magistrate judge recuse himself, the appellate court found no error requiring reversal, but

stated that it would have been better practice for the magistrate judge to have recused himself

from the case. 

7th Circuit: 

Allen v. Wine, 297 Fed. Appx. 524 (7th Cir. 2008)

The magistrate judge's alleged bias against the prisoner plaintiff by not appointing counsel

to assist in his case did not constitute extraordinary circumstances justifying that the

reference to the magistrate judge be vacated under § 636(c). 

Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095 (7th Cir. 1987)

The magistrate judge's allowance of the plaintiff's motion to amend the pleadings to add a

$10,000,000 damage claim did not constitute "extraordinary circumstances" justifying

withdrawal of the reference to the magistrate judge.

December 2013 30 INVENTORY
8th Circuit:

Southern Agriculture Co. v. Dittmer, 568 F. Supp. 645 (W.D. Ark. 1983)

No extraordinary circumstances existed under § 636(c)(4) to vacate the reference where the

magistrate judge had presided over the case for more than a year and withdrawal would cause

substantial delay. 

10th Circuit:

Rivera v. Rivera, 216 F.R.D. 655 (D. Kan. 2003)

A party’s dissatisfaction with a magistrate judge's ruling in a civil consent case did not

constitute evidence that the magistrate judge was partial to one party that would constitute

"extraordinarycircumstances" to justifyvacating the civil consent reference under 28 U.S.C.

§ 636(c), or the magistrate judge's recusal under 28 U.S.C. § 455(a).

Jurado v. Klein Tools, Inc., 755 F. Supp. 368 (D.Kan. 1991)

Claim that the attorneys' consent to trial before a magistrate judge was not binding upon the

client did not constitute "extraordinary circumstances."

D.C. Circuit:

Manion v. American Airlines, Inc., 251 F. Supp. 2d 171 (D.D.C. 2003)

A party’s dissatisfaction with a ruling in a civil consent case did not constitute evidence that

the magistrate judge was partial to one party that would justify either vacating the civil

consent reference as "extraordinary circumstances" under 28 U.S.C. § 636(c), or recusal of

the magistrate judge under 28 U.S.C. § 455(a).

Clay v. Brown, Hopkins, & Stambough, 892 F. Supp. 11 (D.D.C. 1995)

A magistrate judge's alleged bias against the plaintiff did not constitute "extraordinary

circumstances" that would justify vacating the reference under § 636(c). The proper method

for raising alleged bias of a magistrate judge would be a motion for recusal under 28 U.S.C.

§ 455 that must be raised first before the magistrate judge. The district judge refused to

sanction the use of § 636(c)(4) as a "back-door" method of seeking recusal of a magistrate

judge.

4. Good Cause Shown on Motion of the Court

1st Circuit:

Ouimette v. Moran, 730 F. Supp. 473 (D.R.I. 1990)

The court discusses factors to be considered by the district judge to determine if good cause

exists to vacate a reference to a magistrate judge.

2d Circuit:

Fulton v. Robinson, 289 F.3d 188 (2d Cir. 2002)

It was well within a district judge's discretion to withdraw a reference to a magistrate judge

under § 636(c) when case-dispositive motions were pending before the district judge and

December 2013 31 INVENTORY
where the plaintiff did not indicate his agreement to the reference until after the final motions

for summary judgment had been argued.

Paddington Partners v. Bouchard, 950 F. Supp. 87 (S.D.N.Y. 1996)

Where the parties consented to a particular magistrate judge to dispose of their case and that

magistrate judge retired, the court vacated the reference for "good cause" under § 636(c)(4). 

3d Circuit:

Leab v. Cincinnati Ins. Co., 1997 WL 736865 (E.D. Pa. 1997)

The district judge's desire to perform his own work constituted good cause to vacate the

reference to a magistrate judge where the district judge stated that under usual circumstances

he would not have referred the case to a magistrate judge in the first place.

9th Circuit:

Gomez v. Harris, 504 F. Supp. 1342 (D. Alaska 1981)

The court found good cause to vacate the reference of a social security appeal to a magistrate

judge due to questions of law and a "thicket" of procedural difficulties.

5. Authority of Magistrate Judge After Reference is Vacated

2d Circuit:

McCarthy v. Bronson, 906 F.2d 835 (2d Cir. 1990), aff'd, 500 U.S. 136 (1991)

The magistrate judge was "entitled to take the lesser step" of issuing a report and

recommendation under § 636(b)(1)(B) in a prisoner case after the plaintiff was permitted to

withdraw his consent to trial before the magistrate judge. 

Gonzalez v. Rakkas, 846 F. Supp. 229 (E.D.N.Y. 1994)

A magistrate judge's ruling that entry of default judgment against defendant extinguished

plaintiff's right to a jury trial on damages would be treated as a report and recommendation

to be reviewed de novo by the district judge after the order referring the case to the

magistrate judge was vacated.

5th Circuit:

Sockwell v. Phelps, 906 F.2d 1096 (5th Cir. 1990)

A magistrate judge has no authority to try the case and issue a report and recommendation

under § 636(b)(1)(B) after allowing the party to withdraw consent. This was a jurisdictional

error under Gomez v. United States, 490 U.S. 858 (1989), and was not harmless.

9th Circuit:

United States v. Mortensen, 860 F.2d 948 (9th Cir. 1988), cert. denied, 490 U.S. 1036 (1989)

The consent to trial before the magistrate judge is not automatically withdrawn by a

declaration of mistrial. The magistrate judge's authority continues until the reference is

withdrawn under § 636(c)(4).

December 2013 32 INVENTORY
D. Appeal of Magistrate Judge's Decision [Fed. R. Civ. P. 73] 

In October 1996, the Federal Court Improvements Act of 1996 was enacted, thereby amending the

Federal Magistrates Act to eliminate the option of appealing a magistrate judge's order in a civil

consent case to the district court. In particular, sections 636(c)(4) & (5) were stricken from the

statute. Section 636(c)(3) of Title 28 now states:

Upon entry of judgment in any cases referred under [28 U.S.C. § 636(c)(1)], an

aggrieved partymay appeal directly to the appropriate United States court of appeals

from the judgment of the magistrate judge in the same manner as an appeal from any

other judgment of a district court. 

Rule 73 of the Federal Rules of Civil Procedure has been amended to conform with the change to

the statute. Old Rules 74 and 75 of the Federal Rules of Civil Procedure were abrogated at the same

time Rule 73 was amended.

1st Circuit:

Pramco, LLC ex rel. CFSC Consortium, LLC v. San Juan Bay Marina, Inc., 435 F.3d 51 (1st

Cir. 2006)

A magistrate judge's order denying the plaintiff's motion to enforce a settlement agreement

in an action where the magistrate judge was presiding with the parties' consent was a final,

appealable decision under Fed. R. Civ. P. 58, even though no separate judgment or order was

entered, where no further proceedings were pending in the district court and none were

contemplated, where the magistrate judge's ruling satisfied the purpose of Rule 58's separate

judgment requirement by communicating an unambiguous message of finality to the parties,

and where the timeliness of the appeal made it pointless, for the purposes of Rule 58, to

remand the case merely for the entry of a formal separate judgment. 

5th Circuit:

United States for Use and Benefit of Gulf State Enterprises, Inc. v. Tway, Inc., 938 F.2d 583

(5th Cir. 1991)

Where a magistrate judge tried a civil case and entered judgment with the consent of the

parties under § 636(c), the appellate court reviewed the magistrate judge's judgment under

the same standards used for reviewing judgments entered by district judges.

6th Circuit:

Myers v. Copper Cellar Corp. 192 F.3d 546 (6th Cir. 1999)

In an action under the Fair Labor Standards Act where a magistrate judge presided with the

parties' consent, the magistrate judge's assessments of the credibility of witness testimony

pertinent to key issues in the case, or any other testimony, was not subject to appellate reevaluation.

December 2013 33 INVENTORY
Darnell v. Rossen, 116 F.3d 187 (6th Cir.1997)

The amendment to 28 U.S.C. § 636(c) that eliminated the right of appeal to the district court

in civil consent cases applies retroactively to cases pending at the time the amendment was

enacted, even where the parties had agreed to appeal to the district court. 

7th Circuit:

Seymour v. Hug, 485 F.3d 926 (7 Cir. 2007) th

An attorney lacked standing to appeal a ruling by a magistrate judge concerning a settlement

agreement in a civil consent case where the magistrate judge sharply criticized the attorney’s

actions but did not impose monetary sanctions. 

9th Circuit:

Gametech Int'l, Inc. v. Trend Gaming Systems, L.L.C., 2008 WL 4571424 (D. Ariz. 2008)

A district judge adopts a magistrate judge's report and recommendation concluding that

where the parties' have consented to disposition of a civil cases by a magistrate judge, the

magistrate judge continues to have authority over the case after appeal to and remand from

the court of appeals. Once the parties have consented to the magistrate judge's jurisdiction

in a civil case and have not successfully withdrawn such consent, the procedural path for the

case, including the appellate route, is parallel to that of a case that is in front of a district

court judge. The parties' consent to disposition by the magistrate judge does not end with

appeal.

10th Circuit:

Grimsley v. MacKay, 93 F.3d 676 (10th Cir. 1996)

On appeal of a magistrate judge's judgment rendered under § 636(c), the appellate court used

the standard of review that would be applied to a judgment rendered by a district judge, with

the clearly erroneous standard applied to the magistrate judge's findings of fact and de novo

review applied to questions of law and mixed questions of law and fact.

D.C. Circuit:

Perles v. Kagy, 394 F. Supp. 2d 68 (D.D.C. 2005)

In a civil consent case under 28 U.S.C. § 636(c), the right to appeal the magistrate judge's

order denying an attorney's motion to intervene in a fee action brought by another attorney

lies with the court of appeals, not with the district court.

December 2013 34 INVENTORY
§ 9. CONTEMPT AUTHORITY UNDER 28 U.S.C. § 636(e)

A. Expanded Magistrate Judge Contempt Authority Under 28 U.S.C. § 636(e). 2

B. Magistrate Judge Contempt Authority Under 28 U.S.C. § 636(e) Prior to the

Federal Courts Improvement Act of 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1. Magistrate Judge Authority .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2. Misdemeanor Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

3. Certification of Facts Constituting Contempt. . . . . . . . . . . . . . . . . 8

4. District Court's Supervisory Authority.. . . . . . . . . . . . . . . . . . . . . 10

5. Appellate Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. Magistrate Judge Presiding As Contempt Special Master 

for the Court of Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 9. CONTEMPT AUTHORITY UNDER 28 U.S.C. § 636(e) 

The Federal Courts Improvement Act of 2000 expanded significantly the contempt authority that

magistrate judges may exercise. Section 636(e) of Title 28 was amended and completely changed by

this legislation. These changes are summarized below.

A. Expanded Magistrate Judge Contempt Authority Under 28 U.S.C. § 636(e)

Section 636(e)(1) provides that magistrate judges are given the power to exercise contempt authority

as set forth in the other provisions of amended § 636(e) within the territorial jurisdiction prescribed

by their appointments. 

Section 636(e)(2) provides magistrate judges with summary criminal contempt authority to punish

any misbehavior occurring in their presence so as to obstruct the administration of justice. Summary

criminal contempt authority is granted to magistrate judges to maintain order and to protect the court's

dignity in response to contumacious behavior by witnesses, parties, counsel, and others present at

court proceedings. When presiding over cases or proceedings as the primary judicial officer for the

district court, a magistrate judge is provided appropriate immediate authority to control activity in the

courtroom. The limited penalties magistrate judges may impose for summary criminal contempts are

set forth in § 636(e)(5), summarized below.

Section 636(e)(3) gives magistrate judges additional criminal contempt authority in civil consent

cases under 28 U.S.C. § 636(c) and in misdemeanor cases under 18 U.S.C. § 3401. The section

provides magistrate judges with authority to punish misbehavior occurring outside their presence that

constitutes disobedience or resistance to the magistrate judges' lawful writ, process, order, rule,

decree, or command in civil consent and misdemeanor cases. Such criminal contempt authority is

provided to enable a magistrate judge to enforce his or her orders and to vindicate the magistrate

judge's (and the court's) authority over cases tried by a magistrate judge.

Section 636(e)(4) authorizes magistrate judges to exercise civil contempt authority in civil consent

cases under 28 U.S.C. § 636(c) and in misdemeanor cases under 18 U.S.C. § 3401. In such cases, the

magistrate judge may exercise civil contempt authority identical to the civil contempt authority of a

district judge.

Section 636(e)(5) establishes limits on the penalties magistrate judges may impose for criminal

contempts. Imprisonment for a summary criminal contempt committed in the magistrate judge's

presence, or for a criminal contempt occurring in a civil consent or misdemeanor case outside the

magistrate judge's presence, may not exceed 30 days incarceration (the maximum term of

imprisonment for a Class C misdemeanor, set forth in 18 U.S.C. § 3581(b)(8)). A fine under this

provision may not exceed $5,000 (the maximum fine that may be imposed upon an individual for a

Class C misdemeanor under 18 U.S.C. § 3571(b)(6)). 

December 2013 2 INVENTORY
Congress considered some contumacious conduct to be so egregious as to require more severe

punishment. In such situations, 28 U.S.C. § 636(e)(6) retains the certification procedure that existed

in § 636(e) before enactment of the Federal Courts Improvement Act of 2000. If, in the opinion of

the magistrate judge, a criminal contempt occurring in the magistrate judge's presence, or a criminal

contempt in a civil consent or misdemeanor case, is sufficiently serious that 30 days incarceration

and/or a $5,000 fine would not be an adequate punishment, the magistrate judge has the option of

certifying the facts to a district judge for further contempt proceedings. The section also provides that

in any other case or proceeding referred to a magistrate judge under 28 U.S.C. §§ 636(a) or (b), or any

other statute, criminal contempts that occur outside the magistrate judge’s presence and civil

contempt matters must be handled through the certification procedure. Under this provision, the

magistrate judge would certify the facts constituting the contempt to a district judge and issue an order

to show cause why that person should not be adjudged in contempt of court by the facts so certified. 

Section 636(e)(7) provides that in civil consent cases under § 636(c), an appeal from a magistrate

judge's contempt order is heard by the court of appeals. The appeal of any other order of contempt

issued by a magistrate judge is made to the district court. 

Below are cases interpreting the expanded contempt authority of magistrate judges set forth in

amended 28 U.S.C. § 636(e) that was enacted in 2000.

2d Circuit:

Bowens v. Atlantic Maintenance Corp., 546 F. Supp. 2d 55 (E.D.N.Y. 2008)

In action under the Fair Labor Standards Act that was referred to a magistrate judge for

pretrial case management, the plaintiff moved for an order of contempt against defendants for

alleged violations of the magistrate judge's pretrial order. After conducting a lengthy

evidentiary hearing, the magistrate judge issued a report and recommendation analyzing the

standards for civil contempt, discussing the extent of the magistrate judge's contempt authority

under 28 U.S.C.§ 636(e), and recommending that the plaintiff's motion for contempt be

denied, but that sanctions be imposed against the defendants. The district judge held that the

defendant had waived all objections to the magistrate judge's report and recommendation by

failing to file specific objections and therefore adopted the magistrate judge's report and

recommendation in full.

Hunter TBA, Inc. v. Triple V Sales, 250 F.R.D. 116 (E.D.N.Y. 2008)

Where a defendant failed to comply with the plaintiff's subpoena issued in aid of execution

of a default judgment and the plaintiff moved for an order of contempt that was referred to

a magistrate judge, the magistrate judge issued a report and recommendation pursuant to 28

U.S.C. § 636(e)(6)(B)(iii) and Fed. R. Civ. P. 45(e) certifying facts constituting contempt after

the defendant failed to respond to the magistrate judge's order scheduling a hearing to show

cause why the defendant should not be held in contempt. The magistrate judge therefore

recommended that the district judge issue an order of contempt, and the district judge adopted

the recommendation and issued the order of contempt.

December 2013 3 INVENTORY
Jones v. J.C. Penney's Dept. Stores, Inc., 228 F.R.D. 190 (W.D.N.Y. 2005)

A magistrate judge concluded that the plaintiff's attorney's substantial and willful interference

with the plaintiff's deposition, in violation of deposition guidelines contained in a scheduling

order, warranted punishment for civil contempt of court, and magistrate judge therefore filed

a certification to the district judge assigned the case finding that the attorney's violations 

were acts constituting civil contempt and recommended that the attorney be held in civil

contempt pursuant to 28 U.S.C. § 636(e)(6)(B)(iii).

3d Circuit:

Wallace v. Kmart Corp., 687 F.3d 86 (3d Cir. 2012)

The Third Circuit held that a magistrate judge did not have authority to issue an order for civil

contempt under 28 U.S.C. § 636(e) against an attorney who allegedly failed to comply with

a subpoena issued by the defendants, where the alleged contumacious behavior occurred

outside the magistrate judge’s presence in a proceeding where the magistrate judge was

merely overseeing pretrial proceedings and the parties had not consented to have the

magistrate judge dispose of the case under 28 U.S.C. § 636(c). Noting that the 2000

amendments to § 636(e) that expanded magistrate judge contempt authority did not change

the existing certification procedure applicable in other contempt situations, the court

concluded “the Magistrate Judge should have certified the facts of the alleged contempt to the

District Judge, who in turn should have held a hearing to determine those facts.” [See

Information Memorandum No. 325 for a more detailed summary of this case.]

4th Circuit:

Cromer v. Kraft Foods North America, Inc., 390 F.3d 812 (4 Cir. 2004) th

A magistrate judge erred in imposing both criminal and civil contempt orders against an

allegedly vexatious litigant. Criminal contempt conviction was improper where the litigant

was not informed of his right to counsel and where the magistrate judge "improperly assumed

a prosecutorial role" by acting as both prosecutor and decision maker. Imposition of $1,500

civil contempt sanction against the litigant was also improper where the magistrate judge did

not condition the civil contempt order on compliance with a court order and did not tailor the

sanction to compensate the complaining party. 

6th Circuit:

Dayton Newspapers, Inc. v. Teamsters Local Union No. 957, 176 F. Supp. 2d 765 (S.D. Ohio

2001)

With enactment of the Federal Courts Improvement Act of 2000 that amended § 636(e), the

magistrate judge had authority to decide a party's motion for civil contempt in a civil consent

case under § 636(c), thereby exercising the civil contempt authority inherent to all American

courts. (Opinion by a magistrate judge.)

December 2013 4 INVENTORY
7th Circuit:

Federal Trade Commission v. Think Achievement Corp., 144 F. Supp. 2d 1029 (N.D. Ind.

2001)

A magistrate judge had civil contempt authority under amended § 636(e) to punish as a

contempt of court a party's failure to comply with an injunctive order entered by the

magistrate judge presiding under § 636(c). The magistrate judge ordered the parties who had

failed to comply with the injunction incarcerated until they had purged themselves of such

contempt. (Opinion by a magistrate judge.)

9th Circuit: 

Alcalde v. NAC Real Estate Investments & Assignments, Inc, 580 F. Supp. 2d 969 (C.D. Cal.

2008)

In proceedings bya judgment creditor to obtain information on the assets of judgment debtors,

where the judgment creditor filed a motion with the presiding magistrate judge requesting 

that the magistrate judge certify facts under 28 U.S.C. § 636(e)(6) that constituted contempt

to a district judge and to issue an order to show cause why the judgment debtors should not

be held in either civil or criminal contempt, the magistrate judge, after conducting judgment

debtor examination hearings to which the judgement debtors did not appear, exercised her

contempt authority under § 636(e)(6) by granting the motion. 

Irwin v. Mascott, 370 F.3d 924 (9 Cir. 2004) th

A magistrate judge presiding with consent had authority to hold a non-party liable for

contempt sanctions for violations of an injunction issued in a class action case arising under

the Fair Debt Collection Practices Act where the named parties served as the non-party’s

virtual representatives. 

 

Biovail Laboratories, Inc. v. Anchen Pharmaceuticals, Inc., 463 F. Supp. 2d 1073 (C.D. Cal.

2006)

In a patent infringement case, a magistrate judge had authority under 28 U.S.C. § 636(e) to

certify facts to a district judge concerning the defendant's motion for civil contempt against

the plaintiff for alleged violation of a protective order, but the particular circumstances of the

case did not warrant contempt sanctions. (Opinion by a magistrate judge.)

 

10th Circuit:

In re Contempt Order, 441 F. 3d 1266 (10 Cir. 2006) th

A magistrate judge abused his discretion by entering a summary criminal contempt order

against a special assistant United States attorney and fining him $50 when the attorney was

five minutes late to a detention hearing before the magistrate judge. 

December 2013 5 INVENTORY
B. Magistrate Judge Contempt Authority Under 28 U.S.C. § 636(e) Prior to the Federal

Courts Improvement Act of 2000 

Before the Federal Courts Improvement Act of 2000 was enacted, magistrate judges were granted

more limited contempt authority under the Federal Magistrates Act. The earlier version of § 636(e)

placed strict limits on this power. The section defined actions constituting contempt as:

(1) disobedience or resistance to any lawful order, process, or writ;

(2) misbehavior at a hearing or other proceeding, or so near the place thereof as

to obstruct the same;

(3) failure to produce, after having been ordered to do so, any pertinent document;

(4) refusal to appear after having been subpoenaed or, upon appearing, refusal to

take the oath or affirmation as a witness, or, having taken the oath or

affirmation, refusal to be examined according to the law; or

(5) any other act or conduct which if committed before a district judge would

constitute contempt of such court.

When contemptuous behavior occurred before a magistrate judge, the earlier language of § 636(e)

provided that "the magistrate [judge] shall forthwith certify the facts to a judge of the district court"

and may serve upon the offending party "an order requiring such person to appear before a judge of

that court upon a day certain to show cause why he should not be adjudged in contempt by reason of

the facts so certified."

Magistrate judges, therefore, had no immediate determinative authorityunderthe Federal Magistrates

Act to punish parties or others for contempt of court for disruptive behavior occurring in their

presence. Several courts held prior to 2000, however, that magistrate judges wield powers similar

to contempt authority through the sanction provisions in federal statutes and the Federal Rules of

Civil Procedure while conducting duties under 28 U.S.C. §§ 636(a), (b) and (c). See §§ 4 and 5,

supra, for further discussion of magistrate judge sanction authority.

The cases summarized below discuss magistrate judges exercising contempt authority under the

earlier, more limited version of section 636(e) that existed prior to 2000.

1. Magistrate Judge Authority

2d Circuit:

Litton Sys., Inc. v. A.T. & T., 700 F.2d 785 (2d Cir. 1983), cert. denied, 464 U.S. 1073 (1984)

A magistrate judge did not exceed certification authority under § 636(e) when he conducted

an evidentiary hearing on a motion for discovery sanctions under Fed. R. Civ. P. 37 and the

final decision regarding the appropriate sanctions to be imposed was left to the district judge.

December 2013 6 INVENTORY
3d Circuit:

Taberer v. Armstrong World Industries., Inc., 954 F.2d 888 (3d Cir. 1992)

A magistrate judge exceeded his authority under § 636(e) by conducting what was in effect

a "trial" against an attorney accused of criminal contempt without obtaining the attorney's

consent. A district judge in the case must conduct a de novo hearing in a contempt

proceeding involving contumacious behavior certified by a magistrate judge. The district

judge at bar erred by relying solely on a transcript of the contempt proceeding before the

magistrate judge when ordering the attorney held in contempt.

5th Circuit:

F.D.I.C. v. LeGrand, 43 F.3d 163 (5th Cir. 1995)

The appellate court upheld a district judge's referral of a motion for contempt to the magistrate

judge under 28 U.S.C. § 636(b)(3), but vacated the court's order incarcerating the defendant

for 72 hours, concluding that it was a criminal contempt order intended to punish the

defendant and was therefore ordered without proper notice and hearing.

6th Circuit:

Miami Valley Carpenters Dist. Council Pension Fund v. Scheckelhoff, 123 F.R.D. 263 (S.D.

Ohio 1988)

Use of the term "punish" in § 636(e) indicates that the provision was intended to apply to

criminal contempt only. A litigant's consent under § 636(c) allows a magistrate judge to

conduct a civil contempt proceeding. (Opinion by a magistrate judge.)

7th Circuit:

In re Skil Corp., 119 F.R.D. 658 (N.D. Ill. 1987)

A magistrate judge had authority under § 636(e) to issue an order to show cause why a party's

refusal to comply with an administrative inspection warrant did not constitute civil contempt.

(Opinion by a magistrate judge.)

9th Circuit:

Bingman v. Ward, 100 F.3d 653 (9th Cir. 1996), cert. denied, 520 U.S. 1188 (1997)

A magistrate judge did not have authority under the Federal Magistrates Act to adjudicate

either civil or criminal contempts.

NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410 (9th Cir. 1994)

The Federal Magistrates Act did not authorize magistrate judges to conduct non-consensual

criminal contempt trials for an appellate court. 18 U.S.C. § 3401 provides the only statutory

basis for the criminal jurisdiction of magistrate judges, whose criminal trial jurisdiction

depends upon the defendant's specific written consent. The court found no defect in the

magistrate judge's exercise of civil contempt authority on behalf of the appellate court under

28 U.S.C. § 636(b)(2) and Fed. R. Civ. P. 53.

December 2013 7 INVENTORY
Gomez v. Scoma's Inc., 1996 WL 723082 (N.D. Cal. 1996)

The duty of the magistrate judge under 28 U.S.C. § 636(e) is simply to investigate whether

further contempt proceedings are warranted, not to issue a contempt order. The magistrate

judge may conduct a hearing to determine whether certification for contempt is appropriate. 

In the case at bar, the magistrate judge properly refused to certify a defendant for alleged

contempt in a dispute over a witness deposition.

10th Circuit:

Windsor v. Martindale, 175 F.R.D. 665 (D. Col. 1997)

Where witnesses in a prisoner civil rights action refused to complywith the prisoner plaintiff's

subpoenas duces tecum, the plaintiff's remedy was to seek to hold the witnesses in contempt

of court. The presidingmagistrate judge was required to make initial finding under 28 U.S.C.

§ 636(e) as to whether the witnesses improperly failed to respond to subpoenas before

certifying contempt to the district judge.

11th Circuit:

King v. Thornburg, 762 F. Supp. 336 (S.D. Ga. 1991)

Magistrate judges have authority to issue arrest warrants, but an order directing an attorney's

arrest for failure to appear at a scheduled hearing is not a "normal judicial function" for

magistrate judges who possess no authority to punish for contempt.

2. Misdemeanor Contempt 

3d Circuit:

United States v. Gedraitis, 690 F.2d 351 (3d Cir. 1982), cert. denied, 460 U.S. 1071 (1983)

A magistrate judge had authority under § 636(a)(3) to try contempts referred by a district

judge with the parties' consent, provided the penalties do not exceed those for a misdemeanor. 

3. Certification of Facts Constituting Contempt

2d Circuit:

Blum v. Schlegel, 108 F.3d 1369 (2d Cir. 1997) (Table disposition -- text available on

WESTLAW)

The district court did not abuse its discretion when it ordered dismissal of the plaintiff's action

as a contempt sanction after the magistrate judge certified the plaintiff to be in contempt for

wilful violation of the magistrate judge's protective order. 

Nova Biomedical corp. v. i-STAT Corp., 182 F.R.D. 419 (S.D.N.Y. 1998)

Dicta: Once actions constituting contemptuous behavior under the definitions set forth in 

§ 636(e) are committed, the magistrate judge may certify the relevant facts to a district judge

to determine whether contempt authority should be applied.

December 2013 8 INVENTORY
Peker v. Fader, 965 F. Supp. 454 (S.D.N.Y. 1997)

The plaintiffs were properly certified for contempt when they screamed at the magistrate

judge presiding at a final pretrial conference and walked out of the conference. Although

incarceration or fine are standard criminal contempt penalties, dismissal of plaintiffs' lawsuit

was appropriate under the circumstances of the case.

3d Circuit:

Holt Cargo Sys., Inc. v. Delaware River Port Auth., 1998 WL 150948 (E.D. Pa. 1998)

The district court denied a motion for contempt for a party's failure to comply with a

magistrate judge's pretrial orders. The proper procedure for a party moving for contempt for

violation of a magistrate judge's order is to file a motion with the magistrate judge, who

thereby acts as fact-finder and "certifies the facts" under § 636(e) to the district judge for

determination whether the facts establish a contempt of court.

4th Circuit:

Proctor v. State Gov't of North Carolina, 830 F.2d 514 (4th Cir. 1987)

The magistrate judge's certification of facts constituting civil contempt is treated as a prima

facie statement of the case before the district judge. The district judge must allow parties the

opportunityto submit additional evidence. The court analogizes certification procedure under

§ 636(e) with the contempt provisions of the Bankruptcy Act.

5th Circuit:

United States v. McCargo, 783 F.2d 507 (5th Cir. 1986)

A district judge can take judicial notice of the existence of the magistrate judge's certification

of facts constituting contempt where the certification is not contained in the record.

7th Circuit:

Hecht v. Don Mowry Flexo Parts, Inc., 111 F.R.D. 6 (N.D. Ill. 1986)

After a magistrate judge in a civil consent case certified facts constituting defendant's alleged

contempt to a district judge for defendant's failure to produce documents in response to a

subpoena duces tecum, the district judge held that the defendant's actions did not constitute

criminal contempt because of a lack of willfulness on the defendant's part. Although the

district judge adjudicated the defendant's failure to comply with the subpoena as civil

contempt, no sanction was imposed because the underlying civil case had been finally

adjudicated.

9th Circuit:

Aldridge v. Young, 782 F. Supp. 1457 (D. Nev. 1991)

A litigant's failure to appear before a magistrate judge or to produce a requested document in

post-judgment proceedings in aid of execution of a judgment constituted criminal contempt. 

The magistrate judge's certification of facts constituting contempt to the district judge was

proper under § 636(e).

December 2013 9 INVENTORY
In re Kitterman, 696 F. Supp. 1366 (D. Nev. 1988)

Although the magistrate judge was not authorized to decide whether the actions that occurred

before her constituted contempt, she was permitted to preside over hearing to determine

whether to certify the facts of the matter for further contempt proceedings before the district

judge.

10th Circuit:

Cook v. Rockwell Int'l. Corp., 907 F. Supp. 1460 (D. Col. 1995)

A magistrate judge properly certified a civil contempt matter to the district judge where the

Department of Energy failed to comply with the magistrate judge's order to produce

documents in litigation concerning the Rocky Flats nuclear weapons production facility.

D.C. Circuit:

Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 181 (D.D.C. 1998)

Dicta: Consistent with § 636(e), a magistrate judge must exercise his or her discretion in

deciding whether conduct has risen to the level at which he or she must certify the facts of the

conduct to a district judge for contempt adjudication. (Opinion by a magistrate judge.)

4. District Court's Supervisory Authority

2d Circuit:

Nova Biomedical Corp. v. i-STAT Corp., 182 F.R.D. 419 (S.D.N.Y. 1998)

Where a magistrate judge did not certify to the district court that an individual's actions

constituted contempt under § 636(e), and the defendant did not move to have the magistrate

judge reconsider the decision not to certify, the defendant's motion for contempt will be

denied.

3d Circuit:

Taberer v. Armstrong World Ind., Inc., 954 F.2d 888 (3d Cir. 1992)

The district judge should have conducted a de novo hearing concerning alleged contumacious

behavior that occurred before a magistrate judge. The district judge erred in relying solely on

a transcript of the contempt proceeding before the magistrate judge.

In re Kirk, 641 F.2d 684 (9th Cir. 1981)

To prove intent in a § 636(e) contempt action before a district judge, it must be shown that

an attorney knew, in view of all the circumstances, that his or her behavior exceeded the outer

limits of an attorney's proper role and was hindering rather than facilitating the search for

truth.

December 2013 10 INVENTORY
5. Appellate Review

5th Circuit:

Castaneda v. Falcon, 166 F.3d 799 (5th Cir. 1999)

Because the magistrate judge lacked the power to adjudicate contempt proceedings under 

§ 636(e), with only the authority to certify facts to a district judge, the court of appeals was

without jurisdiction to hear a direct appeal from a magistrate judge's decision regarding

contempt certification.

9th Circuit:

Heinly v. Checkcept, LLC, 68 Fed. Appx. 126 (9th Cir. 2003)

The appellate court did not have jurisdiction to consider an appeal from a magistrate judge's

summary contempt order imposing monetary sanctions against an attorney who failed to

appear in court as ordered. The initial appeal of the magistrate judge's summary contempt

order should have been to the district court.

In re Kirk, 641 F.2d 684 (9th Cir. 1981)

The appellate standard in a contempt proceeding, viewing the evidence in the light most

favorable to sustaining a conviction for criminal contempt, is whether the district judge could

rationally conclude that guilt was established beyond a reasonable doubt.

C. Magistrate Judge Presiding As Contempt Special Master for the Court of Appeals

Magistrate judges occasionally have been appointed by courts of appeals to serve as special masters

in contempt matters that arise in the appellate court. For additional information concerning the

appointment of magistrate judges as special masters in courts of appeals, see section 6, supra.

7th Circuit:

Reich v. Sea Sprite Boat Co., Inc., 50 F.3d 413 (7th Cir. 1995)

A magistrate judge was appointed as a special master to conduct appellate contempt

proceedings, including the oversight of discovery to compel production of evidence and to

conduct evidentiary hearings. 

9th Circuit: 

NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410 (9th Cir. 1994)

Although the appellate court had authority to appoint a magistrate judge to serve as a special

master in a contempt proceeding in the appellate court, the "catch-all" provision of 28 U.S.C.

§ 636(b)(3) did not authorize magistrate judges to conduct non-consensual criminal contempt

trials. The court found no defect in the magistrate judge's civil contempt jurisdiction under

28 U.S.C. § 636(b)(2) and Fed. R. Civ. P. 53. 

December 2013 11 INVENTORY
APPENDIX A: STANDARDS OF REVIEW IN BAIL AND DETENTION

PROCEEDINGS UNDER THE BAIL REFORM ACT

I. Standard of Review Applied by the District Court. . . . . . . . . . . . . . . . 2

II. Standard of Review Applied by the Court of Appeals. . . . . . . . . . . . . . 7
APPENDIX A: STANDARDS OF REVIEW IN BAIL AND DETENTION

PROCEEDINGS UNDER THE BAIL REFORM ACT

The Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., governs the release and detention of federal

criminal defendants before trial. Section 3145 of the Act does not set forth specific standards of

review to be applied by either the district judge reviewing a magistrate judge's release or detention

order or the court of appeals reviewing the district court's release or detention order. Below are

cases discussing the standards of review applied in different circuits to detention and release orders

issued by magistrate judges under the Bail Reform Act. 

I. Standard of Review Applied by the District Court

Courts have generally concluded that district courts should apply the de novo standard of review

when review of a magistrate judge's release or detention order is sought.

1st Circuit:

United States v. Craven, 181 F. 3d 80 (1st Cir. 1998) (Table disposition) 

Although the district judge's standard of review in reviewing a magistrate judge's detention

orders was ambiguous, it was not overly deferential or so mistaken as to constitute

prejudicial error. There also was no indication that the district judge's review of the

magistrate judge's legal conclusion was other than de novo.

United States v. Tortora, 922 F.2d 880 (1st Cir. 1990)

The district judge conducts de novo review of a magistrate judge's contested detention order.

United States v. Vega Cosme, 1 F. Supp. 2d 109 (D.P.R. 1998)

The district judge is required to make a de novo review of a magistrate judge's contested

detention order.

United States v. Alonso, 832 F. Supp. 503 (D.P.R. 1993)

Section 3145(b) of Title 18 requires the district judge to make a de novo review of the

magistrate judge's detention order, but does not require the district judge to conduct a de

novo hearing.

2d Circuit:

United States v. Leon, 766 F.2d 77 (2d Cir. 1985)

The district judge should fully reconsider the magistrate judge's denial of bail and should not

simply defer to the magistrate judge's judgment. District judges should reach independent

conclusions on release and detention issues.

United States v. Kantipuly, 2007 WL 463125 (W.D.N.Y. 2007)

A district judge may amend the conditions of bail subject only to the statutory standards

applicable to the setting of bail, without any prior determination that the magistrate judge's

order was clearly erroneous or contrary to law, and has authority to make a de novo review

December 2013 2 INVENTORY
of the magistrate judge's order of release, despite the fact that the district judge was not the

releasing officer and regardless of whether review was sought by the defendant or the

government.

United States v. Goba, 240 F. Supp 2d 242 (W.D.N.Y. 2003)

Following receipt of a timely filed motion for revocation of a detention order as provided for

in 18 U.S.C. § 3145(b), the district judge must conduct de novo review of the magistrate

judge's detention order. Under this review standard, the district judge will judge the issues

anew, but in doing so, should utilize the factual and evidentiary record developed before the

magistrate judge. However, the district judge will reach his/her own findings of fact and

conclusions of law.

3d Circuit:

United States v. Delker, 757 F.2d 1390 (3d Cir. 1985)

Following the government's filing of a motion to review the magistrate judge's release order,

the district judge may hold an evidentiary hearing in

furtherance of the de novo review function.

United States v. Kanawati, 2008 WL 1969964 (D.V.I. 2008)

In conducting de novo review of a magistrate judge's detention order, the district judge may

rely on the evidence presented before the magistrate judge. Although not required to do so,

the district judge may choose to hold an evidentiary hearing if necessary or desirable to aid

in the determination.

United States v. Lemos, 876 F. Supp. 58 (D.N.J. 1995)

The district judge's powerto review a magistrate judge's bail determination de novo includes 

authority to hold a detention hearing, even if the magistrate judge below determined bail

conditions without a hearing. Whether the district judge proceeds by live testimony or

proffer is within his/her discretion.

Gov. of the Virgin Islands v. Clark, 763 F. Supp. 1321 (D.V.I. 1991), aff'd, 989 F. 2d 487

(3d Cir. 1993), cert. denied, 509 U.S. 910 (1993)

The magistrate judge's release order is reviewed de novo by the district judge. The district

judge must make an independent determination of the release issue, based upon the factors

set forth in 18 U.S.C. § 3142 of the Bail Reform Act.

4th Circuit:

United States v. Stewart, 19 Fed. Appx. 46 (4th Cir. 2001)

When a district judge acts on a motion to revoke or amend a magistrate judge's pretrial

detention order, the district judge acts de novo and must make an independent determination

of the proper pretrial detention or conditions of release.

December 2013 3 INVENTORY
United States v. Boyd, 484 F. Supp. 2d 486 (E.D. Va. 2007)

A district judge should review a magistrate judge's ruling on pretrial detention de novo.

However, the district judge need not conduct a new detention hearing. The district judge

may base his/her decision on the transcript of the original detention hearing, and any

additional evidence proferred by counsel.

5th Circuit:

United States v. Nguyen, 166 Fed. Appx. 118 (5th Cir. 2006)

When the district judge acts on a motion to amend a magistrate judge's pretrial detention

order, it must act de novo and must make an independent determination of the proper pretrial

detention or conditions of release.

United States v. Fortna, 769 F.2d 243 (5th Cir. 1985)

A district judge must review the magistrate judge's detention or release order de novo, but

the district judge should not modify the magistrate judge's order in a manner unfavorable to

the defendant absent an appeal by the government. 

United States v. Torres, 566 F. Supp. 2d 591 (W.D. Tex. 2008)

When prompted to review a magistrate judge's pretrial detention order, the district judge acts

de novo, making an independent determination for detention or the appropriate conditions

of pretrial release.

United States v. Lee, 156 F. Supp. 2d 620 (E.D. La. 2001)

A magistrate judge's order for detention may be reconsidered by the district court pursuant

to 18 U.S.C. § 3145. The standard for the review is an independent review of the record to

decide the appropriateness of the decision to detain.

6th Circuit:

United States v. Runnerstrand, 2008 WL 927774 (E.D. Mich. 2008)

The district judge reviews a defendant's appeal of an order of detention de novo.

United States v. Yamini, 91 F. Supp. 2d 1125 (S.D. Ohio 2000)

De novo review of the magistrate judge's detention order is the appropriate standard of

review based on prior case law and the legislative history of 18 U.S.C. § 3145. In the

absence of de novo review, a court of appeals may not have sufficient information to carry

out its duty of prompt determination of appeals from release or detention orders in

accordance with § 3145(c).

7th Circuit:

United States v. Torres, 929 F.2d 291 (7th Cir. 1991)

When the defendant's family testified before the magistrate judge at the bail hearing

concerning the defendant's family ties as proof that the defendant would not abscond, the

district judge on review erred when he declined to read the transcript of the hearing and

December 2013 4 INVENTORY
refused to permit evidence of family ties to be submitted at a subsequent detention hearing

conducted by the district judge. 

United States v. Rivera, 2007 WL 2531308 (N.D. Ind. 2007)

Under 18 U.S.C. § 3145(b), the district judge must conduct de novo review of a release or

detention order and need not defer to the magistrate judge's findings. The district judge's 

review may be conducted either by reviewing the transcript, or by holding a new hearing. 

Although the district judge has authority to conduct a new hearing, the district judge is not

required to do so. 

United States v. McManus, 2006 WL 3833314 (N.D. Ind. 2006)

When reviewing a magistrate judge's detention order, the district judge must reach his/her

own independent conclusions. The court must conduct what is substantially de novo review

and need not defer to the magistrate judge's findings.

United States v. Messino, 842 F. Supp. 1107 (N.D. Ill. 1994)

In reviewing a magistrate judge's release order upon the motion of the government, the district

judge employs the de novo standard of review and may hear additional evidence or rely on

the transcript of the hearing before the magistrate judge as its source of evidence. 

United States v. Jones, 804 F. Supp. 1081 (S.D. Ind. 1992)

The appropriate standard to be applied by the district judge to a release or detention order is

de novo review. The district court (including a magistrate judge) can review the order of a

magistrate judge of another district denying the government's motion for pretrial detention sua

sponte and may amend conditions of release. 

8th Circuit:

United States v. Foote, 898 F.2d 659 (8th Cir.), cert. denied sub nom., Thompson v. United

States, 498 U.S. 838 (1990)

The failure to appeal a magistrate judge's pretrial detention order under 18 U.S.C. § 3145

waives consideration of the detention order at a post-conviction appeal.

United States v. Maull, 773 F.2d 1479 (8th Cir. 1985) (en banc)

A district judge should review a magistrate judge's release order de novo. The district judge

may hold a detention hearing with all the options available to the district judge that are

available to the magistrate judge.

9th Circuit:

United States v. Gebro, 948 F.2d 1118 (9th Cir. 1994)

The district judge had the authority to reopen a magistrate judge's bail order on its own motion

sua sponte and order the defendant's detention. 

December 2013 5 INVENTORY
United States v. Koenig, 912 F.2d 1190 (9th Cir. 1990)

A district judge's review of a detention order under 18 U.S.C. § 3145(b) is de novo

determination. Under this standard, the district judge should review the evidence before the

magistrate judge and make an independent determination as to whether the magistrate judge's

findings are correct, with no deference afforded to the findings of the magistrate judge. The

determination of the propriety of detention is also to be decided without deference to the

magistrate judge's conclusion.

United States v. Petersen, 557 F. Supp. 2d 1124 (E.D. Cal. 2008)

The district judge may hold an evidentiary hearing under the de novo review standard

applicable to a magistrate judge's release order. The magistrate judge's order is entitled to no

deference, and the district judge is not required to adopt any factual findings made by the

magistrate judge.

10th Circuit:

United States v. Cisneros, 328 F. 3d 610 (10th Cir. 2003)

The de novo standard of review governs a district judge's review of a magistrate judge's

detention or release order. It is within a district judge's authority to review a magistrate

judge's release or detention order sua sponte.

United States v. Nguyen, 2008 WL 482699 (D. Kan. 2008)

The district judge's review of a magistrate judge's order of detention is de novo. The judge

must make his or her own determination and must ultimately decide the issue of detention or

conditions of release without deference to the magistrate judge's conclusion.

United States v. Jones, 980 F. Supp. 359 (D. Kan. 1997), aff'd, 127 F. 3d 1110 (10th Cir. 2007)

(Table disposition)

The district judge must make his/her own de novo determination of the facts in reviewing a

magistrate judge's release order with no deference to the magistrate judge's findings. De novo

review does not require a de novo evidentiary hearing. All issues of whether or not to take

additional evidence are left to the district judge's sound discretion.

11th Circuit:

United States v. King, 849 F.2d 485 (11th Cir. 1988)

Under 18 U.S.C. § 3145, a detainee maymove the district court to amend or revoke a magistrate

judge's detention order and the district judge must conduct an independent review. The district

judge may adopt the magistrate judge's pretrial detention orderif the fact findings are supported

and the legal conclusions are correct.

United States v. Hurtado, 779 F.2d 1467 (11th Cir. 1985)

When considering a motion to revoke or amend a magistrate judge's detention order, the district

judge must undertake an independent (de novo) review.

December 2013 6 INVENTORY
United States v. Megahed, 519 F. Supp. 2d 1236 (M.D. Fla. 2007)

The district judge reviews de novo a magistrate judge's pretrial release order. If the district

judge concludes after a careful review of the parties' papers and the evidence presented at the

hearing that the evidence supports the magistrate judge's findings of fact, and if the district

judge determines the magistrate judge correctly applied the law, the district judge may then

adopt the magistrate judge's release order. If necessary to the resolution of an essential fact

issue, the district judge may hold an evidentiary hearing.

D.C. Circuit:

United States v. Epps, 987 F. Supp. 22 (D.D.C. 1997)

Although the magistrate judge who ordered detention made no finding to the effect that two

counts of being a felon-in-possession of a firearm charged against the defendant constituted

"crimes of violence" that warranted detention, the district judge in de novo review of

proceedings before the magistrate judge could make such a determination.

II. Standard of Review Applied by the Court of Appeals

1st Circuit:

United States v. Gianquitto, 89 F.3d 824 (1st Cir. 1996) (Table disposition)

Cognizant of the district court's superior ability to marshal and evaluate facts in pretrial bail

cases, the appellate court undertakes an intermediate level of scrutiny that is more rigorous than

the abuse-of-discretion or clear-errorstandards, but short of plenary or de novo review. In bail

cases, the appellate court necessarily gives deference to the district court's first-hand

determination of fact-based issues.

United States v. Dillon, 938 F.2d 1412 (1st Cir. 1991)

The court of appeals independently reviews the lower court's detention decision, giving

deference to determinations made by the trial court.

United States v. O'Brien, 895 F.2d 810 (1st Cir. 1990)

The appellate standard for reviewing pretrial detention orders is to conduct an independent

review of all detention proceedings with deference to the district court's decision. 

2d Circuit:

United States v. Harrison, 396 F. 3d 1280 (2d Cir. 2005)

The court of appeals held it lacked jurisdiction to review a magistrate judge's detention order

when the order had not been reviewed by the district court.

United States v. Hill, 97 Fed. Appx. 350 (2d Cir. 2004)

The district court's decision to deny bail will be reviewed for clear error and will be reversed

only if the record as a whole leaves the appellate court with a definite and firm conviction that

a mistake has been committed.

December 2013 7 INVENTORY
United States v. Henderson, 57 Fed. Appx. 470 (2d Cir. 2003)

The district court's revocation of bail and its factual determination that the defendant

is a flight risk is reviewed for clear error, but if the court did not formally consider

the statutory factors contained in the Bail Reform Act, a more flexible standard will

be applied. 

United States v. Chimurenga, 760 F.2d 400 (2d Cir. 1985)

The court of appeals applies the clearly erroneous standard in reviewing a district judge's

decision overruling a magistrate judge's detention determination.

3d Circuit:

United States v. Himler, 797 F.2d 156 (3d Cir. 1986)

The appellate court's review of a district court's detention order is plenary and must include an

independent determination with respect to the statutory criteria for detention or release. 

Although the court of appeals is not free to ignore the trial court's statement of reasons for the

action taken, if, after careful review of the record and of the trial court's reasoning, the appellate

court independently reaches a different conclusion, it may amend or reverse the detention

decision.

United States v. Perry, 788 F.2d 100 (3d Cir.), cert. denied, 479 U.S. 864 (1986)

The court of appeals makes an independent review of both the magistrate judge's and the district

judge's decisions under 18 U.S.C. § 3145(c).

4th Circuit:

United States v. Stewart, 19 Fed. Appx. 46 (4th Cir. 2001)

The standard of review for pretrial detention orders under 18 U.S.C. § 3145(c) is one of

independent review, with deference given to the determination of the district court.

United States v. Williams, 753 F.2d 329 (4th Cir. 1985)

The court of appeals applies the clearly erroneous standard to the district judge's and the

magistrate judge's fact findings, with greater deference given to the conclusions of the Article

III judge.

5th Circuit:

United States v. Nguyen, 166 Fed. Appx. 118 (5th Cir. 2006)

Absent an error of law, the appellate court must apply a deferential standard of review and

uphold a district court detention order if it is supported by the proceedings below. On appeal,

the issue becomes whetherthe evidence as a whole supports the conclusions of the proceedings

below.

United States v. Rueben, 974 F.2d 580 (5th Cir. 1992), cert. denied, 507 U.S. 940 (1993)

Absent an error of law, the appellate court must uphold a district court order under the Bail

Reform Act if it is supported by the proceedings below, a deferential standard of review equated

December 2013 8 INVENTORY
with the abuse-of-discretion standard. On appeal, the question becomes whether the evidence

as a whole supports the conclusions of the proceedings below.

United States v. Aron, 904 F.2d 221 (5th Cir. 1990)

The court of appeals reviews the factual basis for ordering revocation of release under 18 U.S.C.

§ 3148(b) under the clearly erroneous standard. A detention order will be sustained if it is

supported by the lower court proceedings. 

6th Circuit:

United States v. Hinton, 113 Fed. Appx. 76 (6th Cir. 2004)

The district court's factual determinations are reviewed for clear error and mixed 

questions of law and fact are reviewed de novo.

United States v. Hazime, 762 F.2d 34 (6th Cir. 1985)

The court of appeals will not disturb fact findings of the district judge or the magistrate judge

unless the findings are clearly erroneous. Mixed questions of law and fact and legal

determinations are reviewed de novo.

7th Circuit:

United States v. Portes, 786 F.2d 758 (7th Cir. 1985)

The court of appeals will not disturb the district judge's or the magistrate judge's fact findings

absent a showing that the findings are clearly erroneous. The appellate court makes an

independent review of the factors under 18 U.S.C. § 3142(g).

United States v. Diaz, 777 F.2d 1236 (7th Cir. 1985)

Appellate review of the magistrate judge's and the district judge's decision under 18 U.S.C.

§ 3142 is highly deferential.

8th Circuit:

United States v. Abad, 350 F. 3d 793 (8th Cir. 2003)

The clearly erroneous standard of review is applied to the factual findings made by the district

court. However, the district court's conclusions and reasoning relating to the ultimate questions

flowing from the factual considerations, such as the determination of conditions that will

reasonably assure the appearance of the defendant, should be the subject of independent review.

United States v. Maull, 773 F.2d 1479 (8th Cir. 1985) (en banc)

The court of appeals reviews the district court's factual findings under the clearly erroneous

standard, but conclusions of law and articulations of reasoning why the district court detained

or released the defendant must be independently reviewed by the appellate court.

9th Circuit:

United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985)

The court of appeals reviews the district court's factual findings under a deferential, clearly

erroneous standard. The appellate court maymake an independent examination of the findings

December 2013 9 INVENTORY
and record to determine whether the pretrial detention order is consistent with the defendant's

constitutional and statutory rights.

10th Circuit:

United States v. Stricklin, 932 F.2d 1353 (10th Cir. 1991)

The court of appeals conducts plenary review of the district court's detention or release order

with regard to mixed questions of law and fact. The court conducts an independent review, with

due deference to the district court's purely factual findings.

11th Circuit:

United States v. Quartermaine, 913 F.2d 910 (11th Cir. 1990)

District court orders granting or denying detention under the Bail Reform Act present mixed

questions of fact and law that are subject to plenary review on appeal. Purely factual findings

will not be disturbed unless they are clearly erroneous.

United States v. Hurtado, 779 F.2d 1467 (11th Cir. 1985)

The trial court's factual determinations under the Bail Reform Act are subject to appellate

review under the clearly erroneous standard. Other statutory factors that require the trial court

to determine mixed questions of fact and law are subject to de novo review by the court of

appeals.

December 2013 10 INVENTORY
APPENDIX B: DE NOVO DETERMINATION UNDER 28 U.S.C. § 636(b)(1)(C)

I. Nature of De Novo Determination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. Presumption That District Judge Has Conducted De Novo Determination.. . 7
APPENDIX B: DE NOVO DETERMINATION UNDER 28 U.S.C. § 636(b)(1)(C)

The term "de novo determination" is not defined in the Federal Magistrates Act. Federal courts have

struggled to define the district judge's responsibilities when reviewing a magistrate judge's report and

recommendation under the "de novo determination" standard set forth in § 636(b)(1)(C). Below are

cases that discuss the term's meaning under the Act.

I. Nature of De Novo Determination

Supreme Court:

Thomas v. Arn, 474 U.S. 140 (1985)

Although the Federal Magistrates Act does not preclude sua sponte de novo review by the

district court where a party fails to file timely objections to the magistrate judge's report and

recommendation, the Act does not require the district court to exercise any review when no

objections are filed.

 . 

United States v. Raddatz, 447 U.S. 667 (1980)

De novo determination language in § 636(b)(1)(C) permits whatever reliance a district judge,

in the exercise of sound judicial discretion, chooses to place on a magistrate judge's report. 

De novo hearing is not required. Dicta: a district judge's rejection of the magistrate judge's

proposed credibility findings without a hearing could give rise to due process questions.

1st Circuit:

Santiago v. Canon, USA, Inc., 138 F.3d 1 (1st Cir. 1998)

When making its de novo determination, the district judge is under no obligation to discover

or articulate new legal theories for a party challenging a report and recommendation issued

by a magistrate judge.

Gioiosa v. United States, 684 F.2d 176 (1st Cir. 1982)

De novo determination only applies to fact-finding, not to technical legal issues amenable to

appellate-type review. The district judge's obligation to review a transcript of proceedings

before the magistrate judge is substantially reduced where the magistrate judge's fact-findings

are largely unchallenged.

United States v. Sherman, 344 F. Supp. 2d 223 (D. Me. 2004)

The "de novo determination" requirement of § 636 (b)(1)(C) does not mandate a de novo

hearing. If the district judge decides not to hold an evidentiary hearing, he or she is required

to consider the record that has been developed before the magistrate judge and give fresh

consideration to those issues to which specific objections have been made.

December 2013 2 INVENTORY
United States v. Cadieux, 295 F. Supp. 2d 133 (D. Me. 2004)

A defendant is entitled only to de novo determination, not a mandatory hearing, when a

district judge reviews a magistrate judge’s proposed findings of fact and recommendation

on a motion to suppress evidence under § 636(b)(1)(B).

2d Circuit:

Cullen v. United States, 194 F. 3d 401 (2d Cir. 1999)

A district judge should not reject a proposed finding of a magistrate judge that rests on a 

credibility determination without having the witness testify before the judge. 

United States v. Rosa, 11 F. 3d 315 (2d Cir. 1993), cert. denied, 511 U.S. 1042 (1994)

A district judge who receives further testimony when conducting de novo determination of

the magistrate judge's report and recommendation on a motion to suppress is not required to

hearlive evidence from all the witnesses who appeared before the magistrate judge. De novo

determination under § 636(b)(1)(C) means that the district judge is free to rehear whatever

testimony is deemed necessary to decide the matter.

Pan Am World Airways, Inc. v. Teamsters, 894 F. 2d 36 (2d Cir. 1990)

Litigants are not permitted to present arguments to the district judge that were not raised

before the magistrate judge.

Grassia v. Scully, 892 F.2d 16 (2d Cir. 1989)

A district judge has discretion to hold a supplemental hearing sua sponte, even if neither

party objects to the magistrate judge's report. The district judge is not required to give

deference to the magistrate judge's findings where the district judge holds a supplemental

hearing.

Duran v. Phillips, 2008 WL 3919195 (S.D.N.Y. 2008)

The district judge is required to make a de novo determination to the extent that a party

makes specific objections to a magistrate judge's findings. Where a party makes only

conclusory or general objections, or simply reiterates the original arguments, the district

judge will review the report strictly for clear error.

Cartagena v. Connelly, 2008 WL 2169659 (S.D.N.Y. 2008)

Pro se parties are generally accorded leniency when making objections. Nonetheless, even

a pro se party's objections must be specific and directed to particular findings in the

magistrate judge's report and recommendation, such that no party is afforded a "second bite

at the apple" by simply relitigating a prior argument.

Independent Living Aids, Inc. v. Maxi-Aids, Inc., 349 F. Supp. 2d 509 (E.D.N.Y. 2004)

Quoting from the Supreme Court's decision in Raddatz, the court noted that the phrase "de

novo determination," as opposed to "de novo hearing," was selected by Congress to permit

whatever reliance a district judge, in the exercise of sound judicial discretion, chooses to

December 2013 3 INVENTORY
place on the magistrate judge's findings and recommendations. Section 636 does not require

a district judge to rehear contested testimony to carry out the statutory command to make the

required "determination." Rather, in making its determination, the district judge in its

discretion should review the record and could hear oral argument. A district judge may, in

its sound discretion, afford a degree of deference to the magistrate judge's report and

recommendations.

3d Circuit:

Hill v. Beyer, 62 F.3d 474 (3d Cir. 1995)

When reviewing a magistrate judge's report and recommendation concerning a prisoner's

application for post-conviction relief under 28 U.S.C. § 2254, the district judge may not

reject the magistrate judge's findings of fact without an evidentiary hearing, where the

finding is based on the credibility of a witness testifying before the magistrate judge and the

finding is dispositive.

Sullivan v. Cuyler, 723 F.2d 1077 (3d Cir. 1983)

The district judge's de novo determination was sufficient where the judge reviewed all

documents and briefs, listened to the oral argument, and addressed all objections to the

magistrate judge's report in the district judge's opinion.

Garcia v. I.N.S., 733 F. Supp. 1554 (M.D. Pa. 1990)

When a magistrate judge makes a finding or ruling on a motion or issue, the ruling should

become the ruling of the district judge unless objections are filed. If no objections are filed,

the district judge need only review the ruling for plain error or manifest injustice.

4th Circuit:

Youngworth v. U.S. Parole Com'n, 728 F. Supp. 384 (W.D.N.C. 1990)

Failure to raise an argument before the magistrate judge does not result in waiver. The

district judge can receive additional evidence to make de novo determination.

United States v. Rembert, 694 F. Supp. 163 (W.D.N.C. 1988)

A magistrate judge's report and recommendation is not self-operating. The magistrate judge's

ruling is not valid, even without objections, until a final judgment is entered by an Article

III judge.

5th Circuit:

Freeman v. County of Bexar, 142 F.3d 848 (5th Cir. 1998)

The district judge has wide discretion to consider and reconsider the magistrate judge's

recommendation when performing de novo review. In the course of performing its openended review, the district judge need not reject newly-proffered evidence simply because it

was not presented to the magistrate judge. Litigants may not, however, use the magistrate

judge as a mere sounding-board for the sufficiency of the evidence. The district judge's

December 2013 4 INVENTORY
discretion in conducting de novo review should be at least as broad as the district judge's

authority to determine motions for reconsideration of its own rulings.

Jordan v. Hargett, 34 F.3d 310 (5th Cir. 1994)

A district judge is required to conduct an evidentiary hearing before rejecting a magistrate

judge's recommendation that habeas corpus relief be granted based on a violation of the right

of a criminal defendant to testify on his own behalf at trial. The district judge has limited

discretion when conducting de novo determination under § 636(b)(1)(C) to reject the

magistrate judge's fact-finding where the finding is based on the credibility of the witnesses

heard bythe magistrate judge, and the finding is dispositive of the criminal defendant's claim. 

Wesson v. Oglesby, 910 F.2d 278 (5th Cir. 1990)

The district judge abused its discretion by adopting recommended findings of the magistrate

judge that were clearly based on an impermissible credibility assessments and failed to

conduct adequate de novo determination when it adopted the magistrate judge's report and

supplemental report apparentlywithout benefit of a transcript or tape recording of the Spears

hearing conducted by the magistrate judge. 

United States v. Wilson, 864 F.2d 1219 (5th Cir.), cert. denied, 492 U.S. 918 (1989)

De novo determination is not required where the parties fail to file objections. The clearly

erroneous, contrary to law, or abuse of discretion standards of review are appropriate under

these circumstances.

Butler v. Bexar County, Texas, 2007 WL 3128593 (W.D. Tex. 2007)

De novo review of a magistrate judge's recommendation requires the district judge to

consider the relevant evidence of record and not merely review the magistrate judge's

recommendation.

6th Circuit:

United States v. Bermudez, 238 F.3d 424 (6th Cir. 2000)

A district judge normally should not reject a magistrate judge's proposed finding that 

rests on a credibility determination without hearing testimony from the witness.

Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986)

De novo determination refers only to matters involving disputed facts.

Victoria's Secret Stores v. Artco Equipment Co., Inc., 194 F. Supp. 2d 704 (S.D. Ohio 2002)

The de novo standard of review contrasts with the "clearly erroneous" standard of review

applicable to non-dispositive, pretrial matters. A de novo determination requires that fresh

consideration be given to issues to which specific objections have been made by a party. The

district judge should consider the record developed by the magistrate judge before making

its own determination on the basis of that record.

December 2013 5 INVENTORY
United States v. McCrimmon, 2002 WL 31008239 (E.D. Mich. 2002)

Upon reconsideration, the district judge concluded that he erred in making dispositive 

credibility determinations, and thereby rejecting the magistrate judge's credibility findings,

without the benefit of his own evidentiary hearing.

7th Circuit:

Delgado v. Bowen, 782 F.2d 79 (7th Cir. 1986)

De novo determination under § 636(b)(1)(C) permits the district judge to conduct de novo

review at all times, but only mandates de novo determination when objections are raised.

8th Circuit:

United States v. Benitez, 244 Fed. Appx. 64 (8th Cir. 2007)

When the magistrate judge's report is based upon an evidentiary hearing, de novo review

requires, at a minimum, that the district judge listen to the tape of the hearing or read the

hearing transcript.

Taylor v. Farrier, 910 F.2d 518 (8th Cir. 1990)

The absence of a transcript or a tape recording of the evidentiary hearing before the

magistrate judge makes de novo determination by the district judge impossible. De novo

determination applies to all objections made to the report and recommendation, including

objections to credibility findings by the magistrate judge.

9th Circuit:

United States v. Howell, 231 F. 3d 615 (9th Cir. 2000), cert. denied, 534 U.S. 831 (2001)

A district judge has the discretion, but is not required, to consider evidence presented 

for the first time in a party's objection to a magistrate judge's recommendation. In deciding

whether to consider newly offered evidence, the district judge must actually exercise its

discretion, rather than summarily accepting or denying the motion. The language and

legislative history of the Federal Magistrates Act, Supreme Court precedent, and practical

considerations support this conclusion.

Boniface v. Carlson, 881 F.2d 669 (9th Cir. 1989)

Whether the district judge should issue a separate opinion when adopting a magistrate judge's

report and recommendation is entirely within the district judge's discretion.

10th Circuit:

In re Griego, 64 F.3d 580 (10th Cir. 1996)

De novo determination required the district judge to consider the relevant evidence in the

record and not merely review the magistrate judge's recommendation.

Johnson v. Rogers, 756 F.2d 79 (10th Cir. 1985)

De novo determination did not require a de novo hearing or a remand to the magistrate judge

for additional fact finding.

December 2013 6 INVENTORY
Nat. R.R. Passenger Corp. v. Koch Industries, Inc., 701 F.2d 108 (10th Cir. 1983)

The district judgemust review a transcript to conduct proper de novo determination of mixed

questions of law and fact. An examination of pleadings and hearing arguments was

insufficient.

11th Circuit:

Stephens v. Tolbert, 471 F.3d 1173 (11 Cir. 2006) th

The district judge, in conducting de novo review of a report and recommendation by a

magistrate judge, did not abuse his discretion when he considered an argument that was not

raised before the magistrate judge.

In re Holywell Corp., 967 F.2d 568 (11th Cir. 1992)

Where a party objects to portions of the record before the magistrate judge, de novo

determination requires only the independent review of those portions of the record by the

district judge.

Diaz v. United States, 930 F.2d 832 (11th Cir. 1991)

De novo determination does not require the district judge to reiterate the magistrate judge's

findings and conclusions where the district judge accepts the magistrate judge's report in its

entirety.

United States v. Solomon, 728 F.Supp. 1544 (S.D. Fla. 1990)

Parties objecting to the magistrate judge's report and recommendation were not entitled to

a de novo hearing before the district judge. Requiring another hearing would undermine

judicial economy.

LaMarca v. Turner, 662 F. Supp 647 (S.D. Fla. 1987), appeal dismissed, 861 F.2d 724 (11th

Cir. 1988)

Congress intended "de novo determination" to give the district judge discretion to place

whatever reliance he or she chooses on the magistrate judge's findings and recommendations. 

The district judge should give substantial deference to the magistrate judge's credibility

findings. 

II. Presumption That District Judge Has Conducted De Novo Determination

It is generally presumed that the district judge has performed de novo determination

mandated by the Federal Magistrates Act whenever a party has filed timely objections to a

magistrate judge's report and recommendation under § 636(b)(1)(C). Several courts,

however, have examined circumstances where this presumption may be challenged by

litigants.

December 2013 7 INVENTORY
2d Circuit:

Claude v. Peikes, 534 F. 3d 801 (2d Cir. 2008)

It is presumed that the district judge made a de novo review of the magistrate judge's

report and recommendation unless affirmative evidence indicates otherwise.

Murphy v. Int'l Bus. Mach. Corp., 23 F.3d 719 (2d Cir.), cert. denied, 513 U.S. 876 (1994)

The court of appeals would not construe the brevity of the district judge's order adopting the

magistrate judge's report and recommendation as an indication that the appellant's objections

to the magistrate judge's report and recommendation were not given due consideration under

the district judge's de novo determination, particularly in view of the report's correctness on

the merits.

4th Circuit:

Biles v. Maryland House of Correction, 151 F.3d 1028 (4th Cir. 1998) (Table disposition) 

It was fair for the court of appeals to presume that the district judge knew of the requirement

to conduct de novo determination under § 636(b)(1)(C) because to do otherwise would

necessarily create a presumption that the district judge acted improperly. 

Stickles v. Derwinski, 929 F.2d 694 (4th Cir.), cert. denied, 504 U.S. 929 (1992) (Table

disposition)

Where a party filed timely objections to the magistrate judge's recommendation for summary

judgment, and the district judge adopted the recommendation without considering the

objections, the district judge committed error requiring the order to be vacated and remanded. 

5th Circuit:

Bannistor v. Ullman, 287 F. 3d 394 (5th Cir. 2002)

A district judge's statement that de novo review was conducted is presumptively valid, if not

dispositive. Furthermore, while the district judge may have erred by adopting the magistrate

judge's report before objections were filed, the appellants suffered no prejudice because the

district judge stated he had conducted de novo review, and, after the appellants nevertheless

filed objections, the district judge reviewed and overruled the objections shortly thereafter.

Lara v. Johnson, 141 F.3d 239 (5th Cir. 1998)

Where the district judge adopted the magistrate judge's report and recommendation in a

habeas corpus matter two days before receiving petitioner's timely objections, the appellate

court would not conclude that the district judge did not perform mandated de novo review

absent specific evidence to the contrary. The appellate court upheld the district judge's ruling

where the district judge later stated that he reviewed the petitioner's objections and concluded

that the result would have been the same even if he had received the objections earlier.

December 2013 8 INVENTORY
Longmire v. Guste, 921 F.2d 620 (5th Cir. 1991)

The district judge's order adopting the recommendations in the magistrate judge's report "for

the reasons set forth in the magistrate's report" did not indicate a failure to conduct de novo

determination. District judges are assumed to perform their statutory obligations.

 

Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982)

In cases where objections have been filed, a district judge cannot reject a magistrate judge's

recommendation without consulting a transcript of the hearing before the magistrate judge. 

6th Circuit:

Sutton v. United States Small Business Administration, 92 Fed. Appx. 112 (6th Cir. 2003)

Notwithstanding the absence of an affirmation in the district judge's order that de novo

review was conducted, the court of appeals presumes that the district judge conducted de

novo review when there is no persuasive indication otherwise.

7th Circuit:

Ramirez v. Turner, 991 F.2d 351 (7th Cir. 1993)

A district judge did not fulfill the statutory duty to conduct de novo determination where a

transcript of the proceedings before the magistrate judgewas not completed until two months

after the district judge entered an order approving the magistrate judge's report and

recommendation.

8th Circuit:

United States v. Benitez, 244 Fed. Appx. 64 (8th Cir. 2007)

De novo review is presumed unless there is affirmative evidence in the record indicating

that the review was not conducted. When a magistrate judge's report is based on an

evidentiary hearing, de novo review requires, at a minimum, that the district judge listen to

a tape of the hearing or read the hearing transcript. The presumption of de novo review will

be negated if: (1) the hearing transcript was not available to the district judge; (2) the district

judge offers no indication that he or she listened to the tapes, and (3) the district judge did

not state that he or she had reviewed the records or files.

Chatt v. Tyner, 1999 WL 34970516 (8th Cir. 1999)

The presumption of de novo review is negated where the district judge indicated only

that he had received the magistrate judge's report and the objections, and that he was 

adopting the findings and recommendations "after careful review." Here, the full transcript

of the evidentiary hearing was not filed with the district judge until after the case had been

dismissed, and the judge did not indicate that he had conducted de novo

review, that it had listened to a tape recording of the hearing, or that the tapes were available.

December 2013 9 INVENTORY
Grinder v. Gammon, 73 F.3d 793 (8th Cir.1996)

Where the district judge erroneously believed that no objections to the magistrate judge's

report and recommendation had been filed and that the filing period for objections had

expired, the appellant demonstrated a prima facie case that de novo determination had not

been performed, overcoming the presumption that the district judge had conducted statutorily

mandated review. 

Jones v. Pillow, 47 F.3d 251 (8th Cir. 1995)

A presumption that proper de novo determination was conducted is not appropriate where,

at the time the district judge adopted the magistrate judge's recommendations, a transcript

of the proceedings before the magistrate judge had not been prepared and there was no

indication in the district judge's order that the district judge listened to a tape of the

proceedings.

Sumlin v. United States, 46 F.3d 48 (8th Cir. 1995)

The district judge's adoption of magistrate judge's report and recommendation before the

filing period for objections had expired and in the absence of objections does not

automatically warrant the presumption that the judge acted without de novo review. Where

no other evidence indicating failure to perform de novo review was offered, the judge will

presume proper review by the district judge.

Branch v. Martin, 886 F.2d 1043 (8th Cir. 1989)

Where a party makes specific and timely objections to the magistrate judge's findings that

are based on conflicting testimony and evidence, the district judge must consider the actual

testimony by listening to a tape recording or reading the transcript of the proceeding. In the

case at bar, proper de novo determination was impossible absent the existence of either a tape

recording or a transcript.

10th Circuit:

McCormack v. Jones, 248 Fed. Appx. 29 (10th Cir. 2007)

Where the district judge stated in his order adopting the recommendation of the magistrate

judge that he reviewed the report and recommendation in light of the objections, and

that he had considered the record, pleadings, and applicable law, this was sufficient to

indicate that the judge had performed the required de novo review.

Northington v. Marin, 102 F.3d 1564 (10th Cir. 1996)

The district judge is presumed to know that de novo review is required. Consequently, a

brief order from the district judge expressly stating that it conducted de novo review is

sufficient absent other evidence showing that such review was not conducted.

December 2013 10 INVENTORY
In re Griego, 64 F.3d 580 (10th Cir. 1996)

The court of appeals will presume that the district judge is aware of the requirement for

conducting proper de novo determination. An objecting party must offer specific evidence

that the district judge did not conduct proper review to overcome this presumption.

Bratcher v. Bray-Doyle Independent School District, 8 F.3d 722 (10th Cir. 1993)

The district judge's duty in conducting de novo determination was satisfied only by

considering actual testimony or other relevant evidence on the record and not by merely

reviewing the magistrate judge's report and recommendation. The appellate court will

presume that the district judge knows what is required for de novo determination and an

express statement by the district judge that it conducted de novo determination of the record

will not be disturbed absent some clear indication otherwise.

Clark v. Poulton, 963 F.2d 1361 (10th Cir.), cert. denied, 506 U.S. 1014 (1992)

The district judge is considered presumptively aware of an earlier court decision requiring

the district judge, at a minimum, to listen to a tape recording or read a transcript of the

evidentiary proceeding before the magistrate judge. The district judge is presumed to have

listened to a tape of the proceeding when adopting the magistrate judge's recommendation

before a transcript has been completed, absent evidence to the contrary.

Andrews v. Deland, 943 F.2d 1162 (10th Cir. 1991), cert. denied, 502 U.S. 1110 (1992)

The court of appeals will not look behind a district judge's express statement that it engaged

in de novo determination of proceedings before a magistrate judge.

Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458 (10th Cir. 1988)

The district judge's statement that he had laboriously poured over the record was insufficient

to show that de novo review was conducted where the judge also stated that it would not

substitute its judgment for that of the magistrate judge, thereby demonstrating deference to

the magistrate judge that was inconsistent with de novo review.

11th Circuit:

Jeffry S. by Ernest S. v. State Bd. of Educ., 896 F.2d 507 (11th Cir. 1990)

At a minimum, the district judge must review a transcript or tape of proceedings before the

magistrate judge when conducting de novo determination. The district judge's adoption of

all but one of the magistrate judge's recommendations after reviewing the magistrate judge's

report for four days was insufficient to constitute proper de novo determinations where a

six-day evidentiary hearing before the magistrate judge resulted in six volumes of transcripts

and sixty pages of objections to the magistrate judge's report. 

December 2013 11 INVENTORY
APPENDIX C: WAIVER UNDER 28 U.S.C. § 636(b)(1)(B) 

I. Failure to File Proper Objections: District Judge Review. . . . . . . . . . . . . . . . 2

A. Waiver of Issues of Both Law and Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Waiver of Issues of Fact.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. Sua Sponte Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. Failure to File Proper Objections: Appellate Review .. . . . . . . . . . . . . . . . . . . 6

A. Waiver of Issues of Both Law and Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Waiver of Issues of Fact.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. Exceptions to the Waiver Rule at the Appellate Level. . . . . . . . . . . . . . . . 8

1. Inadequate Notice to Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. "Interests of Justice," "Fundamental Error" or Plain Error. . . . . . . 9

III. Failure to Raise Argument Before the Magistrate Judge.. . . . . . . . . . . . . . . . 11
APPENDIX C: WAIVER UNDER 28 U.S.C. § 636(b)(1)(B) 

Various waiver issues arise under the Federal Magistrates Act, particularly under provisions

governing the referral of case-dispositive matters to magistrate judges on a report and

recommendation basis. Section 636(b)(1)(B) states that any party "may serve and file written

objections" to a magistrate judge's report and recommendation "[w]ithin ten days after being served

with a copy." Fed. R. Civ. P. 72 also provides that parties may file objections to a magistrate judge's

report and recommendation "[w]ithin 10 days after being served with a copy of the recommended

disposition." In 2005, Fed. R. Crim. P. 59 was promulgated, which sets forth similar procedures for

the filing of objections to a magistrate judge's report and recommendation in a criminal case. Rule

59(b)(2) also explicitly invokes waiver, stating in relevant part, "[f]ailure to object in accordance

with this rule waives a party's right to review." 

Courts have disagreed on the extent to which litigants who fail to raise issues before a magistrate

judge or fail to file timely objections to a magistrate judge's report and recommendation waive these

objections before the district judge and, later, waive their rights to review before the court of appeals. 

Below are cases that discuss waiver issues in several contexts.

I. Failure to File Proper Objections: District Judge Review

Waiver issues exist at the district court level. Courts disagree on whether a party's failure to file

proper objections to a magistrate judge's report and recommendation waives the right to de novo

determination by the district judge or whether the district judge remains obligated to review legal

issues in the report despite a party's failure to object. Most courts allow great discretion to the

district judge.

Supreme Court:

Peretz v. United States, 501 U.S. 923 (1991)

Dicta: In upholding § 636(b)(1)(B) in United States v. Raddatz, 447 U.S. 667 (1980), the

Supreme Court established that de novo determination need not be exercised unless

requested by the parties.

Thomas v. Arn, 474 U.S. 140 (1985)

The Federal Magistrates Act does not preclude sua sponte review of a magistrate judge's

report and recommendation by the district court. Courts may adopt local rules, however,

whereby de novo review may be waived if a party fails to file timely objections to a

magistrate judge's report and recommendation. 

United States v. Raddatz, 447 U.S. 667 (1980)

"While the district judge alone acts as the ultimate decisionmaker, the [Federal Magistrates

Act] grants the judge the broad discretion to accept, reject, or modify the magistrate's

proposed findings."

December 2013 2 INVENTORY
Mathews v. Weber, 423 U.S. 261 (1976)

"The district court is free to follow [the magistrate judge's report and recommendation] or

to wholly ignore it, or, if he is not satisfied, he may conduct the review in whole or in part

anew. The authority - and the responsibility - to make an informed, final determination ...

remains with the judge."

A. Waiver of Issues of Both Law and Fact

Consistent with the Supreme Court's dicta in Peretz, several courts have held that failure to object

to the magistrate judge's report and recommendation frees the district judge from any obligation to

make a de novo determination of the report under § 636(b)(1)(B).

1st Circuit:

Colt Defense, LLC v. Bushmaster Firearms, 486 F. 3d 701 (1st. Cir. 2007)

Given proper notice, a party's failure to assert a specific objection to a report and

recommendation irretrievably waives any right to review by either the district judge or the

court of appeals.

3d Circuit:

Henderson v. Carlson, 812 F.2d 874 (3d Cir.), cert. denied, 484 U.S. 837 (1987)

Failure to object may waive de novo review by the district court of both fact and law

findings, but does not waive appellate review.

4th Circuit:

Diamond v. Colonial Life and Accident Ins. Co., 416 F. 3d 310 (4th Cir. 2005)

In the absence of a timely filed objection, a district judge is not required to conduct de novo

review of the magistrate judge's report and recommendation. The judge must only satisfy

itself that there is no clear error on the face of the record in order to accept the report and

recommendation.

Camby v. Davis, 718 F.2d 198 (4th Cir. 1983)

No explanation is necessary for a district court to summarily affirm the magistrate judge's

report and recommendation absent objections.

5th Circuit:

Villarreal v. Smith, 201 Fed. Appx. 192 (5th Cir. 2006)

Failure to file written objections to the proposed findings and recommendations of the

magistrate judge within ten days of service bars an aggrieved party of de novo review from

the district court, except on the grounds of clear error or manifest injustice. 

United States v. Pierce, 959 F.2d 1297 (5th Cir.), cert. denied, 506 U.S. 1007 (1992)

If objections are untimely, an aggrieved party is not entitled to de novo review of the

magistrate judge's findings and recommendations. 

December 2013 3 INVENTORY
Rodriguez v. Bowen, 857 F.2d 275 (5th Cir. 1988)

A party is not entitled to de novo review of a magistrate judge's finding and

recommendations if objections are not raised in writing by the aggrieved party within ten

days after being served with a copy of the magistrate judge's report. 

6th Circuit:

Veltkamp v. Commissioner of Social Security, 528 F. Supp. 2d 716 (W.D. Mich.2007)

The failure to file timely specific objections to a magistrate judge's report and

recommendation obviates not only de novo district-judge review of the report and

recommendation, but all district-judge review.

8th Circuit:

United States v. Rodriguez, 484 F. 3d 1006 (8th Cir.), cert. denied, 552 U.S. 890 (2007)

The defendant's failure to file timely objections to the magistrate judge's report and

recommendation on his motion to suppress served to waive his right to de novo review by

the district judge of any portion of the report and recommendation.

9th Circuit:

United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (en banc), cert. denied, 540

U.S. 900 (2003)

A district judge need not conduct de novo review of a magistrate judge's findings and

recommendations if no party objects. Neither the Constitution nor 28 U.S.C. 636(b)(1)(C)

requires a district judge to review de novo findings and recommendations that the parties

themselves accept as correct.

B. Waiver of Issues of Fact

Courts in the Eleventh Circuit have held that failure to file objections to a magistrate judge's report

and recommendation constitutes only a waiver of challenges to the magistrate judge's findings of

fact, but district judges are still required to review the legal conclusions made in the report and

recommendation.

11th Circuit:

Garvey v. Vaughan, 993 F.2d 776 (1993)

Where a party did not file specific objections to factual findings by the magistrate judge,

there was no requirement that the district court conduct de novo review of those findings. 

IFG Network Securities v. King, 282 F. Supp. 2d 1344 (M.D. Fla. 2003)

In the absence of specific objections, there is no requirement that a district judge review

factual findings de novo. However, regardless of whether objections are filed, a district

judge must review de novo a magistrate judge's legal conclusions.

December 2013 4 INVENTORY
C. Sua Sponte Review 

Bolstered by references to sua sponte review made by the Supreme Court in Mathews v. Weber and

Thomas v. Arn, as well as the plain language of 28 U.S.C. § 636(b)(1)(B), all courts that have

addressed the issue have concluded that district judges have discretionary authority under

§ 636(b)(1)(B) to conduct de novo determination of magistrate judges'reports and recommendations

sua sponte, even where litigants fail to file timely objections.

1st Circuit:

Crooker v. Van Higgins, 682 F. Supp. 1274 (D. Mass. 1988)

Although the district court has discretion to ignore arguments not made before a magistrate

judge, the court is not required to do so.

2d Circuit:

Grassia v. Scully, 892 F.2d 16 (2d Cir. 1989)

Even if neither party objects to the magistrate judge's recommendation, the district court is

not bound by the magistrate judge's recommendation and may review it sua sponte.

4th Circuit:

Van Harris v. United States, 473 F. Supp. 2d 723 (S.D. W.Va. 2007)

Although neither party filed objections to the magistrate judge's report and recommendation,

the district judge rejected the magistrate judge's report where he found an error of law

"apparent on its face."

5th Circuit:

Equitable Life Assur. Soc. v. Mangel Stores, 691 F. Supp. 987 (E.D. La. 1988)

A court may give whatever review it deems appropriate of the magistrate judge's

recommendations if objections are not filed.

7th Circuit:

United States v. Jaramillo, 891 F.2d 620 (7th Cir. 1989), cert. denied, 494 U.S. 1069 (1990)

A magistrate judge's decision to view an argument as waived is in no sense binding on a

district judge. The decision to accept or reject such an argument is left completely to the

district judge's sound discretion.

10th Circuit:

Summers v. State of Utah, 927 F.2d 1165 (10th Cir. 1991)

Adistrict court is accorded considerable discretion with respect to the treatment of

unchallenged magistrate judge reports. In the absence of timely objection, the district court

may review a magistrate judge's report under any standard it deems appropriate. 

December 2013 5 INVENTORY
II. Failure to File Proper Objections: Appellate Review 

Waiver issues also arise when a case originally referred to a magistrate judge for the preparation of

a report and recommendation under 28 U.S.C. § 636(b)(1(B) is appealed for review by the court of

appeals. Courts disagree on the extent to which a party's failure to file proper objections to a

magistrate judge's report and recommendation results in a waiver of the right to appellate review. 

Moreover, as discussed further below courts of appeal also recognize several exceptions to this

waiver rule.

Supreme Court:

Thomas v. Arn, 474 U.S. 140 (1985)

The supervisorypowers of the courts of appeals include the discretion to impose waiverrules

for failure to object to magistrate judges' recommendations; Article III concerns are not

implicated by such waiver.

A. Waiver of Issues of Both Law and Fact

Several courts of appeals have concluded that a party's failure to make timely objections to the

magistrate judge's report and recommendation in some circumstances may constitute a waiver of

appellate review of both factual and legal issues.

1st Circuit:

Colt Defense, LLC v. Bushmaster Firearms, 486 F. 3d 701 (1st. Cir. 2007)

Santiago v. Canon USA, Inc., 138 F.3d 1 (1st Cir. 1998)

Henley Drilling Co. v. McGee, 36 F.3d 143 (1st Cir. 1994)

2d Circuit:

Davis v. Geren, 272 Fed. Appx. 82 (2d Cir. 2008)

F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d Cir. 1995)

Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993)

Small v. Sec'y of Health & Human Services, 892 F.2d 15 (2d Cir. 1989)

4th Circuit:

United States v. Midgette, 478 F.3d 616 (4th Cir. 2007)

Farmer v. McBride, 177 Fed. Appx. 327 (4th Cir. 2006)

Diamond v. Colonial Life and Acc. Ins. Co., 416 F. 3d 310 (4th Cir. 2005), cert. denied,

546 U.S. 1091 (2006)

December 2013 6 INVENTORY
Wells v. Shriners Hospital, 109 F.3d 198 (4th Cir. 1997)

Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989)

6th Circuit:

Stockard v. Astrue, 293 Fed. Appx. 393 (6th Cir. 2008)

Miller v. Currie, 50 F.3d 373 (6th Cir. 1995)

Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir. 1991)

7th Circuit:

United States v. Hall, 462 F. 3d 684 (7th Cir. 2006), cert. denied, 549 U.S. 1213 (2007)

United States v. Hernandez-Rivas, 248 F.3d 595 (7th Cir. 2003)

Lorentzen v. Anderson Pest Control, 64 F.3d 327 (7th Cir. 1995), cert. denied sub nom.,

Carlson v. ICI Americas, Inc., 517 U.S. 1136 (1996)

10th Circuit:

Duffield v. Jackson, 545 F.3d 1234 (10th Cir. 2008)

Morales-Fernandez v. Immigration and Naturalization Service, 418 F.3d 1116 (10th

Cir.2005)

Ayala v. United States, 980 F.2d 1342 (10th Cir. 1992)

B. Waiver of Issues of Fact

Four courts of appeals apply a different waiver standard, holding that only issues of fact are waived

by a litigant's failure to object, while issues of law are preserved on appeal. 

3d Circuit:

Henderson v. Carlson, 812 F.2d 874 (3d Cir.), cert. denied, 484 U.S. 837 (1987)

8th Circuit:

United States v. Rodriguez, 484 F. 3d 1006 (8th Cir.), cert. denied, 552 U.S. 316 (2007)

Halpin v. Shalala, 999 F.2d 342 (8th Cir. 1993)

Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990)

9th Circuit:

Robbins v. Carey, 481 F. 3d 1143 (9th Cir. 2007)

December 2013 7 INVENTORY
Turner v. Duncan, 158 F.3d 449 (9th Cir. 1998)

F.D.I.C. v. Zook Bros. Const. Co., 973 F.2d 1448 (9th Cir. 1992)

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991)

11th Circuit:

Tillman v. Barnhart, 144 Fed. Appx. 836 (11th Cir. 2005)

Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d 1144 (11th Cir. 1993)

C. Exceptions to the Waiver Rule at the Appellate Level

Courts have recognized several exceptions to appellate waiver rules. 

1. Inadequate Notice to Parties

Many courts have ruled that either the local rules of court or the magistrate judge's report and

recommendation must state explicitly that a party waives review of a magistrate judge's report and

recommendation if timely objections are not filed. This line of cases appears to derive from Thomas

v. Arn, 474 U.S. 140 (1985), in which the Supreme Court noted that courts of appeals may adopt

rules conditioning appeal upon the filing of objections with the district court, at least when such a

rule "incorporates clear notice to the litigants and an opportunity to seek an extension of time for

filing objections..." Id. at 155. The absence of sufficiently specific notice has therefore been held

to create an exception to the waiver rule. This exception is often invoked for pro se litigants.

1st Circuit:

United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986)

2d Circuit:

Caidor v. Onondaga County, 517 F.3d 601 (2d Cir. 2008)

United States v. Male Juvenile, 121 F.3d 34 (2d Cir. 1997)

Small v. Sec'y of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)

3d Circuit: 

Leyva v. Williams, 504 F. 3d 357 (3d Cir. 2007)

4th Circuit:

Wright v. Collins, 766 F.2d 841 (4th Cir. 1985)

6th Circuit:

Mattox v. City of Forest Park, 183 F.3d 515 (6th Cir. 1999)

December 2013 8 INVENTORY
United States v. Walters, 638 F.2d 947 (6th Cir. 1981)

7th Circuit:

Kruger v. Apfel, 214 F. 3d 784 (7th Cir. 2000)

8th Circuit:

Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990)

Messimer v. Lockhart, 702 F.2d 729 (8th Cir. 1983)

10th Circuit:

Duffield v. Jackson, 545 F.3d 1234 (10th Cir. 2008)

Halpin v. Simmons, 234 Fed. Appx. 818 (10th Cir. 2007)

Fero v. Kerby, 39 F.3d 1462 (10th Cir. 1994), cert. denied, 515 U.S. 1122 (1995)

Moore v. United States, 950 F.2d 656 (10th Cir. 1991)

2. "Interests of Justice," "Fundamental Error" or Plain Error

Many courts recognize an exception to the waiver rule where the court's refusal to consider the

litigant's untimely or unraised objection would constitute plain error that would prejudice the party. 

Some courts state that this exception permitting the consideration of arguments that would otherwise

be waived due to failure to file objections where to do so would be "in the interests of justice."

Similarly, other courts overlook a party's failure to file timely objections where such objections were

not "egregiously late" and the opposing party is not prejudiced by the late objections. 

1st Circuit:

Park Motor Mart v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980)

2d Circuit:

Porter v. Potter, 219 Fed Appx. 112 (2d Cir. 2007)

United States v. Male Juvenile, 121 F.3d 34 (2d Cir. 1997)

3d Circuit:

Nara v. Franks, 488 F. 3d 187 (3d Cir. 2007), cert. denied sub nom., Lawler v. Nara, 552

U.S.1309 (2008)

Grandison v. Moore, 786 F.2d 146 (3d Cir. 1986)

4th Circuit:

United States v. Benton, 523 F. 3d 424 (4th Cir.), cert. denied, 555 U.S. 998 (2008)

December 2013 9 INVENTORY
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989)

5th Circuit:

Douglass v. United Serv. Auto. Assoc., 79 F. 3d 1415 (5th Cir. 1996)

6th Circuit:

Gant v. Genco I, Inc., 274 Fed. Appx. 429 (6th Cir. 2008)

Gwin v. Commissioner of Social Security, 109 Fed. Appx. 102 (6th Cir. 2004)

Vaughn v. Lawrenceburg Power System, 269 F. 3d 703 (6th Cir. 2001)

Kelly v. Withrow, 25 F.3d 363 (6th Cir.), cert. denied, 513 U.S. 1061 (1994)

Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987)

7th Circuit:

United States v. Charles, 476 F. 3d 492 (7th Cir. 2007)

United States v. Robinson, 30 F.3d 774 (7th Cir. 1994)

Hunger v. Leininger, 15 F.3d 664 (7th Cir.), cert. denied, 513 U.S. 839 (1994)

8th Circuit:

United States v. Robinson, 253 F.3d 1065 (8th Cir. 2001)

Griffini v. Mitchell, 31 F.3d 690 (6th Cir. 1994)

 

10th Circuit:

Duffield v. Jackson, 545 F.3d 1234 (10th Cir. 2008)

Broadus v. Corrections Corporation of America, Inc., 167 Fed. Appx. 13 (10th Cir. 2006)

Morales-Fernandez v. Immigration and Naturalization Service, 418 F.3d 1116 (10th

Cir.2005)

Moore v. United States, 950 F.2d 656 (10th Cir. 1991)

11th Circuit:

Resolution Trust Corp. v. Hallmark Builders, 996 F.2d 1144 (11th Cir. 1993)

December 2013 10 INVENTORY
III. Failure to Raise Argument Before the Magistrate Judge

Waiver issues also arise when litigants fail to raise arguments or defenses before the magistrate judge

when a case-dispositive motion has been referred to a magistrate judge under § 636(b)(1)(B), but

then attempt to raise the same arguments before the district judge. Courts have generally held that

the district judge has broad discretionary authority to either forego de novo determination of

arguments not raised first before the magistrate judge or to consider arguments not previously

presented to the magistrate judge.

1st Circuit:

Fireman's Insurance Co. v. Todesca Equipment Co., 310 F. 3d 32 (1st Cir. 2002)

Santiago v. Canon, USA, Inc., 138 F.3d 1 (1st Cir. 1998)

Business Credit Leasing v. City of Biddeford, 978 F.2d 767 (1st Cir. 1992)

Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988)

Fonseca-Arroyo v. Puerto Rico Electric Power Authority, 367 F. Supp. 2d 198 (D.P.R. 2005)

2d Circuit:

Edwards v. Fischer, 414 F. Supp. 2d 342 (S.D. N.Y. 2006)

Pan Am World Airways, Inc. v. Teamsters, 894 F. 2d 36 (2d Cir. 1990)

3d Circuit:

Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989)

4th Circuit:

United States v. George, 971 F.2d 1113 (4th Cir. 1992)

A party was permitted to raise arguments before the district judge relevant to any issue to

which proper objection was made to the magistrate judge's report and recommendation, even

though some of the arguments were not raised before the magistrate judge.

5th Circuit:

Cupit v. Whitley, 28 F.3d 532 (5th Cir. 1994), cert. denied, 513 U.S. 1163 (1995)

6th Circuit:

Ward v. United States, 208 F. 3d 216 (6th Cir.) (Table disposition -- text available on

WESTLAW), cert. denied, 531 U.S. 1015 (2000)

United States v. Waters, 158 F.3d 933 (6th Cir. 1998)

December 2013 11 INVENTORY
7th Circuit:

Runda v. Shalala, 27 F.3d 569 (7th Cir. 1994) (Table disposition -- text available on

WESTLAW)

United States v. Jaramillo, 891 F.2d 620 (7th Cir. 1989), cert. denied, 494 U.S. 1069 (1990)

Where the government failed to raise the issue of probable cause until after the magistrate

judge recommended that the evidence be suppressed, the magistrate judge's recommendation

that the probable cause issue had been waived was not binding on the district judge. 

9th Circuit:

United States v. Howell, 231 F.3d 615 (9th Cir. 2000)

Bolar v. Bodgett, 29 F.3d 630 (9th Cir. 1994) (Table disposition -- text available on

WESTLAW)

Greenhow v. Sec. of Health & Human Services, 863 F.2d 633 (9th Cir. 1988), overruled in

part on other grounds by United States v. Hardesty, 977 F. 2d 1347 (9th Cir. 1992) (en banc)

 

10th Circuit:

Cole v. New Mexico, 58 Fed. Appx. 825 (10th Cir.), cert. denied, 540 U.S. 832 (2003)

Shields v. Callahan, 116 F.3d 489 (10th Cir. 1997) (Table disposition -- text available on

WESTLAW)

Marshall v. Chater, 75 F.3d 1421 (10th Cir. 1996)

11th Circuit:

Williams v. McNeil, 557 F.3d 1287 (11th Cir. 2009)

Stephens v. Tolbert, 471 F. 3d 1173 (11th Cir. 2006)

Lewis v. Smith, 855 F.2d 736 (11th Cir. 1988)

D.C. Circuit:

Students Against Genocide v. Department of State, 257 F.3d 828 (D.C. Cir. 2001)

December 2013 12 INVENTORY