A Guide to the Legislative History 

of the Federal Magistrate Judges System

September 2009

Magistrate Judges Division

Office of Judges Programs

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

Washington, D.C.

Phone: (202) 502-1830
i

CONTENTS

A GUIDE TO THE LEGISLATIVE HISTORY OF 

THE FEDERAL MAGISTRATE JUDGES SYSTEM

1. In General. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 1

2. United States Commissioners. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 1

a. Development of the Commissioner System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

b. Origins of Criminal Trial Authority. ... ... ... ... ... ... ... ... ... ... ... ... . . 2

c. Judicial Conference Studies of the Commissioner System. . . . . . . . . . . . . . . . . . . . . 3

3. Legislative Reform. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 5

a. The 1965-66 Hearings on the Commissioner System.. . . . . . . . . . . . . . . . . . . . . . . . . 5

b. Introduction of Draft Legislation to Establish the Federal Magistrates System.. . . . . 6

(1) Proposed Office and Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

(2) Administrative Proposals. ... ... ... ... ... ... ... ... ... ... ... ... ... . 9

(3) Preference for Full-time Judicial Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

(4) Proposed Jurisdiction. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 10

(5) Preliminary Examinations. ... ... ... ... ... ... ... ... ... ... ... ... . . 11

c. Modifications in the Legislation. ... ... ... ... ... ... ... ... ... ... ... ... ... . 11

(1) 1966 Senate Hearings.... ... ... ... ... ... ... ... ... ... ... ... ... ... 11

(2) Judicial Conference Comments. ... ... ... ... ... ... ... ... ... ... ... . 12

d. Approval of the Federal Magistrates Act of 1968. . . . . . . . . . . . . . . . . . . . . . . . . . . 15

(1) Senate Consideration. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 15

(2) House Consideration. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 16

e. Jurisdictional Provisions of the 1968 Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

(1) Commissioner-type Powers and Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

(2) Criminal Trial Duties. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 18

(3) Additional Duties. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 19

4. Implementation of the Magistrates System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

a. Establishment of Magistrate Positions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

b. Administration and Oversight.... ... ... ... ... ... ... ... ... ... ... ... ... ... 22

5. The 1972 Amendments. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 24

a. Salary. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 24

b. Inter-district Assignments of Magistrates.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ii

6. Jurisdictional Uncertainty. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 26

7. Impetus for Redrafting the Jurisdictional Provisions of the Federal Magistrates Act. . . . . . 27

8. The Jurisdictional Amendments of 1976. ... ... ... ... ... ... ... ... ... ... ... ... ... 29

a. Senate Consideration. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 29

b. House Consideration.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 31

c. Provisions of the 1976 Amendments. ... ... ... ... ... ... ... ... ... ... ... ... 32

9. Other Statutory Amendments. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 39

a. Salaries of Magistrates and Positions for the Virgin Islands. . . . . . . . . . . . . . . . . . . 39

b. International Prisoner Transfers. ... ... ... ... ... ... ... ... ... ... ... ... ... . 40

c. Bankruptcy Reform Act of 1978.... ... ... ... ... ... ... ... ... ... ... ... ... . 40

10. Conduct of Civil Trials by Magistrates. ... ... ... ... ... ... ... ... ... ... ... ... ... . . 41

11. The Proposed Magistrate Act of 1977.... ... ... ... ... ... ... ... ... ... ... ... ... ... 42

a. Administration Proposal. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 42

b. Congressional Action. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 43

(1) Senate Consideration. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 43

(2) Provisions of the Senate Bill. ... ... ... ... ... ... ... ... ... ... ... ... 45

(3) House Consideration. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 46

(4) Congressional Conference Consideration. . . . . . . . . . . . . . . . . . . . . . . . . . . 48

12. The Federal Magistrate Act of 1979..... ... ... ... ... ... ... ... ... ... ... ... ... ... 48

a. Congressional Action. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 48

(1) Introduction of Legislation. ... ... ... ... ... ... ... ... ... ... ... ... . . 48

(2) Senate Consideration. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 49

(3) House Consideration. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 51

(4) Congressional Conference Consideration. . . . . . . . . . . . . . . . . . . . . . . . . . . 53

b. Provisions of the 1979 Legislation... ... ... ... ... ... ... ... ... ... ... ... ... 54

(1) Civil Trial Jurisdiction. ... ... ... ... ... ... ... ... ... ... ... ... ... . . 54

(2) Criminal Trial Jurisdiction. ... ... ... ... ... ... ... ... ... ... ... ... . . 56

(3) Selection of Magistrates. ... ... ... ... ... ... ... ... ... ... ... ... ... . 56

(4) Miscellaneous Provisions. ... ... ... ... ... ... ... ... ... ... ... ... ... 57

13. Implementation of the 1979 Legislation. ... ... ... ... ... ... ... ... ... ... ... ... ... . 57

14. Judicial Conference Report on the Federal Magistrates System.. . . . . . . . . . . . . . . . . . . . . . 58

15. Qualifications Amendments of 1982, 1986 and 1989.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

a. 1982 Amendments. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 60

b. 1986 Amendments. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 61

(1) Ad Hoc Recall and Extended Service Recall.. . . . . . . . . . . . . . . . . . . . . . . . 61

(2) Five-year Recall... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 62
iii

(3) Service Beyond Age 70. ... ... ... ... ... ... ... ... ... ... ... ... ... . 63

c. 1989 Amendment. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 63

16. Utilization of Magistrates and Enhancement of the Office.. . . . . . . . . . . . . . . . . . . . . . . . . . 63

a. General Accounting Office Report. ... ... ... ... ... ... ... ... ... ... ... ... . . 63

b. Bail Reform Act of 1984.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 64

c. Juvenile Proceedings.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 65

d. Proceedings In Felony Cases. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 66

e. Bankruptcy Amendments and Federal Judgeship Act of 1984.. . . . . . . . . . . . . . . . . 67

f. Retirement and Survivors' Annuities for Bankruptcy Judges 

and Magistrates Act of 1988. ... ... ... ... ... ... ... ... ... ... ... ... 68

g. Federal Employees’ Group Life Insurance (FEGLI) Benefits 

Changes for Magistrate Judges. ... ... ... ... ... ... ... ... ... ... ... ... ... . . 68

h. Anti-Drug Abuse Act of 1988.... ... ... ... ... ... ... ... ... ... ... ... ... ... 71

i. Judicial Improvements and Access to Justice Act of 1988.. . . . . . . . . . . . . . . . . . . . 72

j. Ethics Reform Act of 1989. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 72

(1) Salary Increase... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 72

(2) Ethics Reform.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 73

k. 1990 Amendments to the Federal Rules of Criminal Procedure. . . . . . . . . . . . . . . . 74

l. Magistrate Judge Participation in Circuit Conferences. . . . . . . . . . . . . . . . . . . . . . . 74

m. Other Policies. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 75

(1) Original Jurisdiction.... ... ... ... ... ... ... ... ... ... ... ... ... ... . 75

(2) Preference for Full-time Judicial Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . 77

(3) Survey Methodology. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 78

(4) Long Range Plan for the Federal Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

17. Federal Courts Study Committee. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 79

a. Proposals Submitted by the Magistrates Committee. . . . . . . . . . . . . . . . . . . . . . . . . 79

(1) Contempt Authority. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 80

(2) Consent in Petty Offense Cases. ... ... ... ... ... ... ... ... ... ... ... . 82

(3) Relaxation of Consent Procedures for Civil Trials. . . . . . . . . . . . . . . . . . . . 84

(4) Change of Title.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 85

(5) Appellate Magistrates.... ... ... ... ... ... ... ... ... ... ... ... ... ... 85

b. Recommendations of the Federal Courts Study Committee.. . . . . . . . . . . . . . . . . . . 86

18. Judicial Improvements Act of 1990. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 87

a. Civil Justice Reform Act.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 87

(1) S. 2027 and its Treatment of Magistrate Judges. . . . . . . . . . . . . . . . . . . . . . 88

(2) The Judicial Conference's Response to S. 2027.. . . . . . . . . . . . . . . . . . . . . . 88

(3) S. 2648 and Revisions to Civil Justice Reform. . . . . . . . . . . . . . . . . . . . . . . 88

b. Federal Courts Study Committee Implementation Act.. . . . . . . . . . . . . . . . . . . . . . . 89

(1) Change of Title.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 90

(2) Consent to Trial in Civil Actions. ... ... ... ... ... ... ... ... ... ... ... 90

(3) Extension of Terms of Office. ... ... ... ... ... ... ... ... ... ... ... ... 91
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19. Judicial Conference Study on Magistrate Judge Authority.. . . . . . . . . . . . . . . . . . . . . . . . . . 91

20. Federal Courts Administration Act of 1992. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

a. Implementation of Federal Courts Study Committee Recommendations. . . . . . . . . 92

21. Federal Courts Improvement Act of 1996.... ... ... ... ... ... ... ... ... ... ... ... ... 93

a. Civil Consent Authority in Emergency Assignments. . . . . . . . . . . . . . . . . . . . . . . . . 93

b. Consent Requirement in Misdemeanor Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

c. Elimination of Optional Appeal Route to District Court in 

Civil Consent Cases. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 94

d. Magistrate Judge on Federal Judicial Center Board. . . . . . . . . . . . . . . . . . . . . . . . . . 94

22. Federal Courts Improvement Act of 2000.... ... ... ... ... ... ... ... ... ... ... ... ... 94

a. Consent to Trial in All Petty Offense Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

b. Magistrate Judge Authority in Juvenile Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

c. Authority for Magistrate Judge Positions in Guam and 

the Northern Mariana Islands. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 95

d. Contempt Authority for Magistrate Judges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

(1) Summary Criminal Contempt Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

(2) Criminal Contempt Authority in Civil Consent Misdemeanor Cases. . . . . . 96

(3) Civil Contempt Authority in Civil Consent and Misdemeanor Cases. . . . . . 96

(4) Criminal Contempt Penalties. ... ... ... ... ... ... ... ... ... ... ... ... 96

(5) Appeals of Magistrate Judge Contempt Orders. . . . . . . . . . . . . . . . . . . . . . . 97

23. Court Security Improvement Act of 2007. ... ... ... ... ... ... ... ... ... ... ... ... ... 97

a. FEGLI Provisions... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 97

b. Senior Judge Voting on Magistrate Judge Appointments. . . . . . . . . . . . . . . . . . . . . 98

ATTACHMENT A. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 100

LEGISLATIVE HISTORY OF THE FEDERAL MAGISTRATES ACT. . . . . . . . . . . . . . 100

ATTACHMENT B. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 105

TEXT AND AMENDMENTS TO 28 U.S.C. § 636.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
The text of this chapter is adapted in part from Peter G. McCabe, The Federal 1

Magistrate Act of 1979, 16 HARV. J. ON LEGIS. 343-401 (1979), and is printed

with the permission of the JOURNAL.

2

Pub. L. No. 90-578, 82 Stat. 1107 (1968) (codified as amended at 28

U.S.C.A. §§ 604, 631-639 and 18 U.S.C.A. §§ 3060, 3401-3402 (West Supp.

1991)).

H.R. REP. NO. 1629, 90th Cong., 2d Sess. 11 (1968), reprinted in 31968

U.S.C.C.A.N. 4252 [hereinafter cited as 1968 HOUSE REPORT].

4

28 U.S.C. § 636(a)(1) (1988).

A list of the statutes that have amended the Federal Magistrates Act is set out

5

as Attachment A to this chapter. The text and amendments to 28 U.S.C. §

636, the principal jurisdictional section of the Act, is set forth in Attachment

B.

Judiciary Act of 1789, ch. 20, § 33, 1 Stat. 91.

6

Act of March 2, 1793, ch. 22, § 4, 1 Stat. 334. 7

1

1. In General1

The United States magistrates system was established by the Federal Magistrates Act of

1968 to "reform the first echelon of the Federal judiciary into an effective component of a modern 2

scheme of justice...." While the Act created United States magistrates as a new corps of judicial 3

officers in the United States district courts, it built upon and superseded the 175-year old United

States commissioner system. It granted to each magistrate, at a minimum, "all powers and duties

conferred or imposed upon United States commissioners" by law or by the Federal Rules of Criminal

Procedure. The Act has been amended on several occasions to improve the administration of the 4

magistrates system, to confer greater judicial authority on magistrates, and to change the title of the

office to "United States magistrate judge."5

2. United States Commissioners

a. Development of the Commissioner System

In the Judiciary Act of 1789, the First Congress specified that bail for a person accused of

committing a federal crime should be set either by a judge of the United States or by a state judge

or state magistrate. In 1793 the Congress authorized the federal circuit courts to appoint "discreet

6

persons learned in the law" to take bail for the courts in federal criminal cases. In 1812 these 7

persons were also authorized to receive affidavits in criminal cases and were allowed such fees for
Act of February 20, 1812, ch. 25, §§ 1, 2, 2 Stat. 679-82. 8

Act of March 1, 1817, ch. 30,

9

3 Stat. 350.

See 10 United States v. Maresca, 266 F. 713, 719-20 (S.D.N.Y. 1920), cert.

denied, 257 U.S. 657 (1921); Richard S. Goldsmith, The Role and Jurisdiction

of the United States Commissioner in the Federal Judicial Structure, 1

LINCOLN L. REV. 89 (1966), reprinted in Federal Magistrates Act: Hearings

on S. 3475 & S. 945 Before the Subcomm. on Improvements in Judicial

Machinery of the Senate Comm. on the Judiciary, 89th Cong., 2d Sess. & 90th

Cong., 1st Sess. 318, 348 (1966 & 1967) [hereinafter cited as 1966-67 Senate

Hearings].

Act of March 9, 1878, ch. 26, 20 Stat. 27, Title XIII, ch. 6, § 627, 2 Rev.

11

Stat. 109 (1878).

Act of May 28, 1896, ch. 252, §§ 19, 21, 29 Stat. 184. 12

Act of May 7, 1894, ch. 22, §§ 5, 7, 28 Stat. 74.

13

2

services as permitted by state law.8

These "discreet persons" were referred to by statute as "commissioners" as early as 1817, at

which time the Congress further authorized them to take affidavits and bail in civil cases and to

exercise all the powers of a federal judge for the taking of depositions. Throughout the nineteenth 9

century the Congress authorized them to perform other miscellaneous duties, and in 1878 it 10

codified the developing law and formally provided for the appointment of "commissioners of the

circuit courts" to exercise such powers as may be conferred by law.11

In 1896 the Congress replaced the century-old system of circuit court-appointed

commissioners with a new system of "United States commissioners," clothed with the same powers

and duties as their predecessors, but appointed by the district courts and compensated for their

services under a uniform federal fee schedule. The United States commissioners were appointed for

four-year terms of office, but they were subject to removal by the district courts at any time.12

b. Origins of Criminal Trial Authority

In 1894 a commissioner position was authorized by statute specifically for Yellowstone

National Park. In addition to the general duties exercised by other commissioners, the park

commissioner was given limited authority to try persons accused of petty offenses committed within

the park. The statute authorized appeal from the commissioner's judgment of conviction to the

United States District Court for the District of Wyoming. The park commissioner was provided with

a fixed salary for his services "in addition to the fees allowed by the law to commissioners of the

circuit courts" for the conduct of various proceedings in federal cases. Over the next half-century, 13
See, e.g., Act of April 20, 1904, 33 Stat. 188, 189; Act of March 3, 1911, 36 14

Stat. 1086; Act of August 22, 1914, 38 Stat. 700, 701; Act of June 30, 1916,

39 Stat. 245, 246; Act of August 21, 1916, 39 Stat. 523; Act of June 2, 1920,

41 Stat. 733; Act of April 25, 1928, 45 Stat. 460; Act of March 2, 1929, 45

Stat. 1538.

Act of October 9, 1940, ch. 785, 15 54 Stat. 1058.

Id. A detailed review of the petty offense jurisdiction of United States 16

commissioners is found in Goldsmith, supra note 10, reprinted in 1966-67

Senate Hearings, supra note 10, at 318.

Reprinted in The U.S. Commissioner System: Hearings Before the Subcomm.

17

on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary,

89th Cong., 1st & 2d Sess., pt. 2 at 53, 67 (1965-66) [hereinafter cited as

1965-66 Senate Hearings]. A summary of actions taken by the Judicial

Conference regarding the commissioner system between 1922 and 1965 is

included in the record of the hearings. Id. at 105-113. 

3

several additional "national park commissioner" positions were established by statute with the same

basic petty offense trial authority as at Yellowstone, as well as the general authority of other

commissioners.

14

In 1940 the Congress extended general authority to try all petty offenses committed on

property under the exclusive or concurrent jurisdiction of the federal government to those United

States commissioners who were specifically designated by their appointing district courts to exercise

such jurisdiction. A commissioner could not proceed with the trial of a petty offense until first

15

apprising the defendant of the right to elect to be tried before a district judge and obtaining the defendant's written consent to be tried before the commissioner. The statute provided for appeal from the

judgment of the commissioner to a district judge, and it authorized the Supreme Court to prescribe

rules of procedure for both the trial of petty offense cases and the taking of appeals.16

c. Judicial Conference Studies of the Commissioner System

In 1942 the Director of the Administrative Office of the United States Courts conducted a

study of the office of United States commissioner for the Judicial Conference of the United States.

The Director concluded that the commissioner system needed substantial improvement and

recommended that consideration be given to: (1) changing from a fee system of compensation to a

salary system; (2) authorizing commissioners to try all federal petty offenses (including those not

committed on federal enclaves) and some misdemeanors above the level of petty offenses;

(3) adopting a policy that commissioners be members of the bar wherever practicable; (4) furnishing

commissioners with space, supplies, and staff; (5) reducing the number of commissioner positions

in the district courts; and (6) combining the office of commissioner in some districts with that of

other court officials, such as a referee in bankruptcy.17
Although favoring in theory the adoption of a salary system for commissioners, 18

the committee concluded that such a salary plan was impracticable and instead

endorsed legislation proposing a simplified fee system. In its report in 1943,

the committee stated the advantages of a salary system:

This method of compensation would dispose, once and for all,

of the criticism that under the present fee system the direction

of official decision may be colored by the prospect of a fee.

The criticism we think somewhat captions as applied to the

commissioners. Nevertheless, for the public repute of the

judicial establishment it is a criticism well to heed.

In March 1950 the Judicial Conference reaffirmed the conclusions of the

committee in response to pending legislation proposing the creation of a salary

system and the elimination of the fee schedules. Id. at 108.

Id. at 106-07. 19

Reprinted in 1966-67 Senate Hearings, supra note 10, at 390-451. 20

Act of August 1, 1946, 21 60 Stat. 752; Act of July 10, 1946, 60 Stat. 525.

Act of August 13, 1954, 22 68 Stat. 703. See JCUS-SEP 52, pp. 7-8; 1965-66

Senate Hearings, supra note 17, at 110. The schedule of fees for

commissioners was increased to an annual statutory maximum of $10,000 in

1957. Pub. L. No. 276, 85th Cong., 1st Sess. (1957).

4

A committee of district judges was formed to examine the Director's report, and it proposed

legislation to put into effect most of the Director's recommendations. The committee was divided 18

on the issue of expanding the criminal trial jurisdiction of the commissioners. Accordingly, the

Judicial Conference appointed a special committee to study the matter further. The special

committee subsequently recommended that commissioners be authorized to accept guilty pleas and

impose sentence in all federal petty offense cases.19

The Judicial Conference approved a "Manual for United States Commissioners" at its

September 1943 meeting. Prepared by the Committee on United States Commissioners, it served

as a procedural guide for commissioners in the performance of official duties in criminal cases. The

manual was revised by the Administrative Office in 1948 to reflect changes in rules and legislation.20

In 1946 the Congress enacted a simplified fee schedule for United States commissioners and

provided for the payment of certain essential office expenses for them. In 1954 the Congress 21

authorized the Director to pay additional office expenses and clerical expenses of those

commissioners who were required to devote full time to their official duties.22
JCUS-SEP 60, p. 41; 1965-66 Senate Hearings, supra note 17, at 112. 23

See 1965-66 Senate Hearings, supra note 17, at 52, 113-121. 24

Id. 25

5

In 1959 Representative Emanuel Celler, Chairman of the JudiciaryCommittee of the House

of Representatives, urged the Judicial Conference to study the commissioner system. The Judicial

Conference concurred and assigned the study to its Committee on the Administration of the Criminal

Law. The committee first endorsed pending legislation: (a) to expand the commissioners' trial

jurisdiction beyond the petty offense level to include misdemeanors for which the maximum

prescribed penalty did not exceed one year's imprisonment and/or a fine of $1,000; and (b) to

increase the commissioners' fee schedule. The committee conditioned its approval upon retention

of the requirement that the defendant in a misdemeanor or petty offense case be apprised of the right

to trial before a district judge and sign a written consent to be tried before the commissioner. The

Judicial Conference approved the committee's recommendations at its September 1960 meeting.23

The Criminal Law Committee also reviewed two proposals drafted by the Administrative

Office for reforming the commissioner system, together with a comprehensive plan for further study

of the system. One of the draft proposals dealt exclusively with the conduct of preliminary hearings

in criminal cases and envisioned upgrading the hearings substantially. The other proposal

contemplated the establishment of a comprehensive new system of full-time and deputy (or

part-time) commissioners.

24

3. Legislative Reform

a. The 1965-66 Hearings on the Commissioner System

Senator Joseph D. Tydings of Maryland, Chairman of the Senate Judiciary Subcommittee on

Improvements in Judicial Machinery, conducted comprehensive, exploratory hearings on the

commissioner system in late 1965 and early 1966. The materials that had been prepared by the 25

Criminal Law Committee of the Judicial Conference were entered in the record at the hearings, and

many of the committee's suggestions were eventually incorporated in draft legislation.

The hearings were devoted largely to the various defects perceived in the commissioner

system. The witnesses generally agreed that the commissioner system needed fundamental reform

and focused on the following deficiencies: (1) the lack of a requirement of bar membership for

appointment as a commissioner; (2) the freedom of the district courts to appoint and remove

commissioners at will; (3) the part-time status of virtually all the commissioners; (4) the lack of

guidance given to commissioners in the performance of their duties; (5) the basic impropriety of a

fee system for compensating judicial officers; (6) the inadequacy of the existing compensation levels;
Id. at 43-44; S. REP. NO. 371, 90th Cong., 1st Sess. 9-11 (1967) [hereinafter 26

cited as 1967 SENATE REPORT]; 1968 HOUSE REPORT, supra note 3, at

13-14.

See 1966-67 Senate Hearings, supra note 10, at 238-39 (statement of Senator 27

Tydings), and at 30-31 (staff memorandum); 1968 HOUSE REPORT, supra

note 3, at 14; 1967 SENATE REPORT, supra note 26, at 11. See also remarks

of Senator Tydings, reprinted in Diversity of Citizenship Jurisdiction and

Magistrates Reform: Hearings Before the Subcomm. on Courts, Civil Liberties,

and the Administration of Justice of the House Comm. on the Judiciary, 95th

Cong., 1st Sess. 86, 96 (1977) [hereinafter cited as the 1977 House Hearings].

See 1966-67 Senate Hearings, supra note 10, at 208; 1965-66 Senate Hearings, 28

supra note 17, at 10, 16, 17, 20, 63-67, 116-17.

See 1965-66 Senate Hearings, supra note 17, at 13-14; 1966-67 Senate 29

Hearings, supra note 10, at 208; 1967 SENATE REPORT, supra note 26, at

33-35.

Referees Salary and Expense Act of 1946, 30 60 Stat. 323. See also Staff

Memorandum, Statutory Provisions Regarding Referees in Bankruptcy, in

1966-67 Senate Hearings, supra note 10, at 279-81.

6

and (7) the insufficiency of support services provided to the commissioners.

26

The hearings elicited two conflicting proposals for general overhaul of the commissioner

system. The first approach would have eliminated or downgraded the office of commissioner and

transferred the duties of the position to district judges. The second would have substantially

upgraded the position of commissioner. The first alternative commanded little support and was

rejected as both inefficient and impractical. The decision was made by the Senate Subcommittee

to follow the latter approach.27

One of the major areas of discussion at the hearings was the trial jurisdiction of the United

States commissioners. Several proposals were advanced to enlarge the jurisdiction to include more

petty offenses and some misdemeanors in order to relieve district judges of the necessity of hearing

these minor cases. Considerable time was also devoted at the hearings to a review of preliminary 28

examination proceedings in federal criminal cases. The testimony established that there was little

uniformity among district courts in the conduct of such proceedings.29

b. Introduction of Draft Legislation to Establish the Federal Magistrates System

In April 1966 the Senate Subcommittee staff completed an initial draft of a bill to create an

upgraded system of judicial officers to replace the commissioners, patterned after the existing

statutory arrangementsfor referees in bankruptcy. The draft was circulated among federal judges, 30
See 1966-67 Senate Hearings, supra note 10, at 2. 31

See 1967 SENATE REPORT, supra note 26, at 9. 32

1966-67 Senate Hearings, supra note 10, at 239. 33

Id. at 14 (subcommittee staff memorandum); see also id. at 239 (remarks of 34

Senator Tydings).

7

United States commissioners, attorneys, law professors, and other interested parties. Following 31

consideration of the various comments and suggestions received, Senators Tydings and Scott

introduced a modified bill in the 89th Congress in June 1966. The revised bill, S. 3475, carried the

endorsement of the Judicial Conference and the American Bar Association, and it was supported by

the Department of Justice and the National Association of United States Commissioners.

32

The legislation was predicated on the fundamental assumptions that the commissioner system

should be upgraded and that new functions should be added to relieve district judges of their growing

caseload burdens. It provided forthe establishment of a wholly new system of full-time and deputy 33

(or part-time) "United States magistrates" in place of the commissioners. The title "United States

magistrate" was chosen to emphasize the judicial nature of the new officer and to denote a clear

break with the commissioner system:

The feeling was that there are altogether too many Federal officials who are

known as "commissioners" of one sort or another; that the name

"commissioner" does not in any way make clear the judicial nature of the

office; and that it would be best to break away from the old commissioner

system in name as well as substance. The name of "United States

Magistrate" was selected as the only acceptable alternative, despite its

unfavorable connotation in some state judicial systems. The new system

envisioned by the bill will soon make a reputation for itself; if, as it is

hoped, the reputation is a good one, any unfavorable connotations presently

attached to the name of "magistrate" will quickly disappear.34

(1) Proposed Office and Compensation

The bill required the Director of the Administrative Office to conduct surveys of local

conditions in the district courts and recommend the number, type and locations of magistrate

positions needed in each court. The Judicial Conference was authorized to establish magistrate

positions for each court, based upon the recommendations of the district court, the pertinent circuit

council, and the Director:
Id. at 12 (subcommittee staff memorandum). 35

Id. See also 1967 SENATE REPORT, supra note 26, at 11-12. "Your 36

committee believes that the enlightened self-interest of district court judges will

8

We feel that statutory determination of the number and location of

magistrates lacks the flexibility necessary to adapt to changing conditions

and reflect experience with what in many ways will be a new system. On

the other hand, a change from a fee system to a salary basis of compensation

requires some central control over the number of salaried positions to be

created. The Judicial Conference, through the process of consultation

borrowed from the [bankruptcy] referee statute, seems the agency best suited

to provide this control.35

The fee system of compensation was abolished in the bill and replaced by a salary system of

compensation similar to that provided for referees in bankruptcy. The salary for each full-time and

deputy magistrate position was to be set by the Judicial Conference, based on the anticipated

workload at a particular location. The maximum salary for a full-time magistrate was set at $22,500,

the same as a full-time referee, and the salaries of deputy magistrates were to range from $300 per

annum to $11,000 per annum. Full-time magistrates and deputy magistrates were placed under the

civil service retirement system.

In keeping with the decision to upgrade the office, the bill established statutory qualifications

for appointment to the position of United States magistrate. All magistrates were required to be

attorneys, and no magistrate could continue to serve after having attained the age of seventy. The

bill, however, included a "grandfather" clause whereby commissioners serving upon the effective

date of the Act could be appointed to the office of magistrate, even if they failed to meet the

qualification requirements. With the approval of the Director a part-time referee in bankruptcy or

a clerk of court or deputy clerk could serve concurrently as a part-time magistrate.

The bill provided that magistrates continue to be appointed by the district courts:

It was felt that, since the magistrates in a sense serve the district courts and

should have the confidence of the district judges if they are to relieve the

judges of some of their burden, it would be best to allow the judges to

continue to appoint them. The district courts would be better qualified than

any more centralized body, such as the circuit councils, the Judicial

Conference, or the Administrative Office, to select the best available local

attorney for the position. Appointment by the President and confirmation

by the Senate which was briefly considered but not seriously advocated by

any witness, would be suitable only if we wished to set up a lower tier of

Article III Federal judges, a measure which seems unwarranted at the present

time.36
prompt them to appoint only highly qualified individuals whose legal

capabilities will have a direct and measurable effect upon the judges' own

workloads, rather than individuals whose only claim to appointment is party

loyalty or personal friendship with one or more of the appointing judges. " Id.

at 12. 

9

The term of office for both full-time and deputy magistrates was set at eight years. Removal of a

magistrate during a term of office could be made only for cause and would be determined by

majority vote of the judges of the district court.

(2) Administrative Proposals

Full-time magistrates were required to devote their time exclusively to their offices and were

prohibited from practicing law or from engaging in any other business that would impair the proper

performance of their official duties. Deputy magistrates were made subject to the criminal

conflict-of-interest provisions of title 18, United States Code. They were allowed to practice law but

could not serve as counsel in criminal cases in the federal courts. Subject to these restrictions,

deputy magistrates could engage in any business not inconsistent with the proper discharge of their

official duties.

The bill authorized the Director to provide payment for clerical and secretarial assistance for

full-time magistrates and to furnish them with necessary office space, furniture, and facilities.

Deputy magistrates were to be reimbursed by the Director for actual and necessary secretarial and

office expenses incurred by them in the performance of their duties, with the exception of the cost

of procuring office space. All magistrates were to receive an official seal, necessary dockets and

forms, and the current edition of the United States Code.

The bill delineated the duties of the Director of the Administrative Office with respect to

magistrates. In addition to conducting surveys as to the number, type, and location of magistrate

positions, the Director was required to gather and evaluate statistics and report to the Congress on

the work performed by magistrates. He was given supervision over administrative matters relating

to the offices of magistrates and responsibility for conducting periodic training seminars for

magistrates. The Director was further required to prepare and distribute a legal manual for

magistrates. In order to carry out these various functions the bill required the Director to establish

a separate division within the Administrative Office to oversee the magistrates system.

(3) Preference for Full-time Judicial Officers

The bill enunciated a strong preference for a system of full-time magistrates. "Deputy"

magistrates were to be considered only at those locations where there was a need to provide prompt

access to a federal judicial officer in criminal cases and a full-time magistrate position would not be

feasible. In remarks accompanying the introduction of the bill, Senator Tydings noted: 
1966-67 Senate Hearings, supra note 10, at 239 (remarks of Senator Joseph D. 37

Tydings on the Senate floor, February 8, 1967).

1967 SENATE REPORT, supra note 26, at 20.

38

Id. 39

10

There is ... one service performed by the old commissioner system that a

network of full-time magistrates cannot replace. This is having available in

remote areas of the country a Federal judicial officer before whom an

arrested person can be brought promptly for presentment and the setting of

bail. In addition, there may be some judicial districts in which the caseload

does not justify the appointment of even one full-time magistrate. For these

reasons, our bill, while establishing a preference for full-time positions

where such are required, also creates the office of part-time U.S.

magistrate....37

Stating that "sound policy and experience underlie this predilection for full-time positions,"

the Senate Judiciary Committee's report noted several reasons in support of the preference for fulltime judicial officers: (1) the higher rate of compensation and the longer term of office of full-time

magistrates will attract high-caliber attorneys; (2) full-time magistrates will more readily develop

expertise in exercising their official responsibilities; and (3) full-time magistrates with offices and

courtrooms in U.S. courthouses will be readily available to judges, law enforcement officials and

arrested persons. The committee emphasized, however, that the creation of part-time magistrate 38

positions, especially in remote or rural areas without a significant caseload to support creation of a

full-time position, was considered "essential to the accomplishment of the ends to which the Federal

Magistrates Act is in part addressed: such convenient access to the U.S. magistrate as will afford law

enforcement officers expeditious issuance of lawful process and arrested persons their constitutional

right to initial appearance before a committing officer without reasonable delay, even in remote

areas."39

(4) Proposed Jurisdiction

The bill specified the judicial authority of magistrates in proposed section 636 of title 28,

United States Code. Full-time and "deputy" magistrates were authorized to perform all the existing

duties of the United States commissioners and such other duties as might be assigned to them under

any other statute or by the Federal Rules of Criminal Procedure.

The bill authorized all full-time magistrates, and those part-time magistrates specially

designated by the courts, to try persons accused of "minor offenses," i.e., violations of federal

criminal laws for which the maximum penalty did not exceed one year's imprisonment and/or a fine

of $1,000. Before proceeding to try a case, a magistrate was required to inform the defendant of the

right to trial before a district judge and to obtain the defendant's waiver of this right and consent to
1966-67 Senate Hearings, supra note 10.

40

11

be tried before the magistrate. Magistrates were authorized to apply the federal probation laws and

to order presentence reports from the probation service, with the approval of the district court. The

bill also authorized magistrates to sentence persons under the federal youth offender and juvenile

delinquency statutes. The bill specified that proceedings in minor offense cases be taken down by

a court reporter or recorded on suitable sound recording equipment and that a copy of the record be

made available without charge to indigent defendants for purposes of appeal.

In order to assist trial judges in expediting their civil and criminal caseloads, the bill

authorized the district courts to assign to full-time magistrates such additional duties as were "not

inconsistent with the Constitution and laws of the United States." The bill then listed the following

specific examples of duties that might be assigned to magistrates by the courts:

(1) service as a special master in an appropriate civil action;

(2) supervision of the conduct of any pretrial discovery proceeding in a civil or criminal

action; and

(3) preliminary consideration of applications for post-trial relief made by individuals

convicted of criminal offenses.

The bill gave magistrates the power to punish as contempt of court certain acts committed

in their presence.

(5) Preliminary Examinations

Finally, the bill attempted to clarify the law regarding the conduct of preliminary

examinations in criminal cases by providing that, unless an intervening indictment or information

were filed, the preliminary examination would have to be held within ten days of the initial

appearance if the defendant were held in custody, or within 20 days if the defendant were released

pending the hearing. The bill provided that the defendant could waive the preliminary examination

or consent to a continuance, after having an opportunity to consult with counsel. Failure to hold the

preliminary examination within the prescribed time limits would result in the unconditional release

of a defendant. These proceedings were required to be taken down by a court reporter or recording

machine, and a copy of the record was to be furnished without charge to an indigent defendant.

c. Modifications in the Legislation

(1) 1966 Senate Hearings

The Subcommittee on Improvements in Judicial Machinery of the Senate Judiciary

Committee held four days of hearings on S. 3475 in July and August 1966 and took testimony from

a wide range of interested parties. In general, the witnesses supported the concept of upgrading the 40

quality of justice at the commissioner level and approved the draft legislation. Several witnesses
Id. at 47 (Senator Ervin), 49 (Senator Brewster), 52 (Judge Northrop), 54 41

(Judge Niles), 92, 94-95 (Judge Hoffman), and 179 (Mr. Homet).

For a statement in favor of contempt authority for magistrates, see 1966-67 42

Senate Hearings, supra note 10, at 195 (Judge Smith). For statements against

contempt authority, see 1966-67 Senate Hearings, supra note 10, at 142

(Professor Dash), 179-80, and 188 (Mr. Homet).

1966-67 Senate Hearings, supra note 10, at 109, 129. See also 1967 SENATE 43

REPORT, supra note 26, at 36. The Department of Justice subsequently

concluded that the jurisdiction was indeed constitutional. See footnote 56,

infra, and corresponding text.

12

noted with particular approval the expanded use of magistrates in civil cases and applauded the

flexibility that would allow each district court to determine how a magistrate could best serve the

court in light of its own specific caseload and particular geographic situation.41

Some witnesses, while approving of the bill, expressed objections or reservations as to

particular provisions of S. 3475. For instance, objection was made to the "grandfather" clause on

the ground that any person who failed to meet the basic statutory requirements should not be

permitted to serve as a magistrate, regardless of prior service to the district court as a commissioner.

Others suggested deleting the specific list of "additional duties" that courts could assign to

magistrates, retaining only a broad authorization for judges to delegate duties to magistrates. Several

witnesses objected, on both philosophical and constitutional grounds, to providing magistrates with

contempt power, preferring a system of certification of any contempt for action by a district judge.

Others, however, argued that the power of contempt was essential, particularly in light of the

expanded criminal jurisdiction of the magistrates.42

The Department of Justice voiced objection to the bill's provision for expansion of the petty

offense trial jurisdiction, stating that many of these cases should be tried in the state courts and that

injection of magistrates into more federal criminal cases would delay the ultimate decisions in these

cases. In addition, the Department asserted that the bill's provisions posed a constitutional problem

of subject-matter jurisdiction that could not be cured by a defendant's consent to be tried by a

non-Article III judicial officer. Most witnesses, though, stated that the defendant's consent would 43

cure any potential problems regarding the expansion of the magistrates' criminal jurisdiction.

Moreover, many pointed out that defendants in minor offense cases would generally prefer to have

their cases disposed of promptly without the formality and publicity that would attach to a

proceeding before a district judge.

(2) Judicial Conference Comments

The Judicial Conference Committee on the Administration of the Criminal Law reviewed the

proposed legislation in detail and offered several recommendations for changes, which were
JCUS-SEP 66, p. 54. The Criminal Law Committee's report on S. 3475 is set 44

forth at pages 241j-244 of the 1966-67 Senate Hearings, supra note 10.

A second report by the Criminal Law Committee, endorsing S. 945, was 45

approved by the Judicial Conference in March 1967. JCUS-MAR 67, p. 38,

reprinted at 1966-67 Senate Hearings, supra note 10, at 244-45..

In adopting the Criminal Law Committee's recommendation that the outside 46

employment activities of part-time magistrates be regulated by the Judicial

Conference, the Senate report noted that the scope of such activities could be

better clarified under Judicial Conference regulations. These regulations "will

enable the development of a practical set of rules that can be easily changed as

experience dictates." 1967 SENATE REPORT, supra note 26, at 18-19.

13

approved by the Conference at its September 1966 session. As proposed by the Criminal Law 44

Committee, the Judicial Conference supported the upgrading of the commissioner system and

applauded Senator Tydings' reform efforts. Most of the recommendations offered by the Criminal

Law Committee were later incorporated into a revised draft bill, S. 945, that Senator Tydings

introduced in the 90th Congress in February 1967.45

Assuggested by the Criminal Law Committee, the term "deputy magistrate" was dropped in

the revised bill, since several district courts would not have a full-time magistrate to whom a

part-time magistrate would be a "deputy." The revised version adopted the simple distinction of

"full-time" and "part-time" magistrates. The minimum statutory salary for a part-time magistrate was

reduced from $300 per annum to $100 per annum; the requirement that a separate division in the

Administrative Office be established to administer the magistrates system was eliminated from the

statute; and the responsibility for procuring office space for magistrates was transferred from the

Director of the Administrative Office to the General Services Administration.

Upon the recommendation of the Criminal Law Committee, part-time magistrates were

required under the revised bill to take the same oath of office as full-time magistrates. The revised

bill deleted a specific reference to the general criminal provisions on conflicts of interests by federal

officers and established instead a procedure for the Judicial Conference to prescribe ethical standards

for part-time magistrates. The revised bill also incorporated the Committee's recommendation that 46

the district courts be authorized to assign "additional duties" under section 636(b) to part-time

magistrates as well as to full-time magistrates. The new draft allowed the district courts, with the

approval of the Judicial Conference, to appoint a non-attorneyas a part-time magistrate if an attorney

was not available at a given location.

The Criminal Law Committee further proposed that part-time magistrates be appointed to

serve at the discretion of the district court, rather than for a set eight-year term. Such an

appointment, the Committee stated, would provide the courts with the flexibility they needed to meet

changing conditions. The revised bill did not incorporate this suggestion, but it reduced the term of
The preference for full-time judicial officers is discussed generally at 47

§ 16(m)(2), infra.

See JCUS-SEP 66, p. 54.

48

1967 SENATE REPORT, supra note 26, at 27-28. 49

14

office for part-time magistrates from eight years to four years. The revised bill also rejected the

Criminal Law Committee's recommendation that the statutory expression favoring a system of

full-time magistrates be moderated. 

47

The Criminal Law Committee expressed reservations on four aspects of the expanded

jurisdiction of United States magistrates. First, it asserted that subsection 636(b), authorizing the

delegation of "additional duties" to magistrates, was so broad and general in scope as to make the

statute vulnerable to possible constitutional attack. The chairman of the Criminal Law Committee

later met with Senator Tydings and congressional staff and mutually agreed to modifications in the

language of the jurisdictional provisions.48

Second, the Criminal Law Committee expressed serious doubts as to the provision giving

magistrates power to punish for contempt. The revised bill, therefore, eliminated the authorization

for magistrates to exercise contempt powers and substituted a procedure wherebymagistrates would

certify contemptuous conduct committed in their presence for hearing and disposition by a judge of

the district court. The Senate report stated:

Your committee is satisfied that the procedure for handling alleged

contempts specified in this section is adequate both to insure proper respect

for the office of U.S. magistrate and its process, and to protect the rights of

alleged contemnors. The procedure prescribed by the section is also

appropriate because the magistrate, in exercising his jurisdiction and power

under the act, is in fact exercising the jurisdiction and powers of the district

court as an officer of that court. It is therefore fitting that failure to accord

the magistrate or his process due respect be treated as a contempt of the

district court, and that such court hear evidence, adjudicate, and punish acts

that are contemptuous of the court by virtue of being contemptuous of one

of its officers.

49

Third, the Criminal Law Committee expressed concern about constitutional objections that

could be raised to the proposed expansion of the criminal trial jurisdiction to include misdemeanors

above the level of petty offense. Therefore, it recommended that the jurisdiction of magistrates

remain limited to petty offense cases, although without restriction as to where an offense were

committed. It also recommended that a general studybe undertaken of the federal criminal laws with

a view towards reducing the penalty provisions of misdemeanor statutes, where appropriate, to the

level of petty offenses. The Senate Subcommittee, and later the full Senate Judiciary Committee,
Id. at 30-32. See Staff Memorandum, The Constitutionality of Trial of Minor 50

Offenses by U.S. Magistrates, reprinted at 1966-67 Senate Hearings, supra

note 10, at 246-56.

1966-67 Senate Hearings, supra note 10, at 245. 51

1967 SENATE REPORT, supra note 26, at 32; 1966-67 Senate Hearings, 52

supra note 10, at 242-43.

1966-67 Senate Hearings, supra note 10, starting at 237. 53

15

concluded unanimously that the "heavy weight" of authority supported the constitutionality of the

expanded minor offense trial jurisdiction. Senator Tydings' revised draft bill, therefore, did not in- 50

corporate the suggestions of the Criminal Law Committee in this regard. The Criminal Law

Committee ultimately recommended approval of the expanded minor offense jurisdiction in its report

on the revised draft bill, S. 945.51

Fourth, at the suggestion of the Criminal Law Committee, the revised bill deleted provisions

empowering magistrates to try defendants under the provisions of the juvenile delinquency and youth

offender statutes. The Senate JudiciaryCommittee made the changes in recognition of the "delicate

and extraordinary" nature of proceedings under those statutes that could culminate in the

confinement of juveniles or youth offenders by a magistrate for a period considerably beyond the

proposed one-year limit on a magistrate's general sentencing authority.52

d. Approval of the Federal Magistrates Act of 1968

(1) Senate Consideration

A final version of the magistrate legislation, reflecting changes in S. 3475 suggested by the

Criminal Law Committee and by witnesses at the 1966 hearings, was introduced by Senator Tydings

at the opening of the new Congress in February 1967. The Subcommittee on Improvements in

Judicial Machinery conducted an additional one-day hearing on the bill in May 1967.53

The Senate Judiciary Committee approved S. 945 on June 28, 1967, making a number of

additional changes in the bill. It amended the definition of a "minor offense" to specifically exclude

from the magistrates' criminal trial jurisdiction certain "political" offenses of a sensitive nature;

provided greater discretion to the district courts in designating magistrates to try minor offenses and

to condition the terms of the designation; amended the trial jurisdiction provision to prescribe more

fully the information that a magistrate must provide to a defendant before obtaining consent to trial;

added a new subsection to specify that a defendant convicted by a magistrate has the right of appeal

to a judge of the district court; and added an exemption to the requirement for mandatory retirement

at age 70 to allow for continued service of a magistrate beyond that age if the judges of the

appointing court unanimously agree.
1967 SENATE REPORT, supra note 26, at 9. 54

Federal Magistrates Act: Hearings on S. 945 et al Before Subcomm. No. 4 of 55

the House Comm. on the Judiciary, 90th Cong., 1st Sess. (1968).

Id. at 61-63. 56

1968 HOUSE REPORT, supra note 3, at 21. See Staff Memorandum, The 57

Constitutionality of Trial of Minor Offenses by U.S. Magistrates, at 1966-67

Senate Hearings, supra note 10, at 246-56.

16

The Senate Judiciary Committee report summarized the purposes of the bill as "both to

update and make more effective a system that has not been altered basically for over a century, and

to cull from the ever-growing workload of the U.S. district courts matters that are more desirably

performed by a lower tier of judicial officers." The bill was brought to the Senate floor and passed 54

unanimously on June 29, 1967, without debate.

(2) House Consideration

In the House of Representatives, Subcommittee No. 4 of the Judiciary Committee held

hearings on S. 945 on March 7 and 13, 1968. Since the Senate hearings had produced voluminous 55

evidence as to the merits of the legislation, the hearings in the House were confined largely to

suggestions for technical improvements in S. 945.

One of the more difficult questions raised during the Senate hearings had been the proposed

expansion of the criminal trial jurisdiction to include offenses punishable by up to one year's

imprisonment and/or a fine of $1,000. In a letter entered into the record at the commencement of

the House hearings, the Deputy Attorney General noted that the expanded trial jurisdiction

constituted "the heart of the bill." He stated that the Department of Justice had resolved its earlier

doubts and was now convinced that the legislation was constitutional.56

The constitutional questions relating to the expanded trial jurisdiction of magistrates were

given particular attention by the House Judiciary Subcommittee. The members concurred in the

analyses of the Senate and concluded that the new jurisdiction was constitutional, emphasizing that

"the magistrate is an officer of the U.S. district court, is appointed by the article III judges of the

court and subject at all times to the directions and control of the judges." The Subcommittee also 57

clarified several references in the bill regarding conflict-of-interest provisions and the removal of

a magistrate for cause.

The House Subcommittee added a provision guaranteeing job security to magistrates who

might be called to active military service. Several congressmen urged adoption of an amendment

to permit the transfer of a magistrate to another district, or the appointment of "temporary

magistrates," in emergency situations. The legislation, though, was not amended to include
1968 HOUSE REPORT, supra note 3. 58

Id. at 14.

59

Id. at 44-47. 60

61 Pub. L. No. 90-578, 82 Stat. 1107 (1968).

17

provisions to this effect.

The House Committee on the Judiciary issued its report on S. 945 on July 3, 1968. The 58

changes recommended by the committee were generally minor in nature, such as transferring

responsibility for the training of magistrates from the Director of the Administrative Office to the

newly-created Federal Judicial Center. The House Judiciary Committee, in approving the legislation,

concluded that the new federal magistrates system would be capable of "increasing the overall

efficiency of the Federal judiciary, while at the same time providing a higher standard of justice at

the point where many individuals first come into contact with the courts."59

The report of the House Judiciary Committee also contained the first legislative dissent from

the Federal Magistrates Act. Representative Cahill of New Jersey expressed the view that the

proposal was unconstitutional and "represent[ed] an unprecedented attempt to thrust the Federal

judiciary into politics." He stated that the Constitution did not specifically authorize a magistrate

system, but did guarantee federal judges lifetime tenure and salary protection. He further noted that

the Constitution vested the power to appoint officers of the United States in the President, with the

advice and consent of the Senate.

60

The House of Representatives passed the bill on September 26, 1968, by a vote of 172 to 21.

The Senate took up the amended version on October 3, and without further debate it unanimously

agreed to the revisions in the bill made by the House of Representatives. On October 17, 1968,

President Johnson signed the Federal Magistrates Act into law.61

e. Jurisdictional Provisions of the 1968 Act

As enacted, the jurisdictional section of the Federal Magistrates Act provided United States

magistrates with authority to perform three basic categories of judicial duties: (a) all the powers and

duties formerly exercised by the United States commissioners; (b) the trial and disposition of

"minor" criminal offenses; and (c) "such additional duties as are not inconsistent with the

Constitution and laws of the United States."

(1) Commissioner-type Powers and Duties

In establishing the office of United States magistrate, the Federal Magistrates Act built upon

and superseded the 175 year old United States commissioner system. The Senate Judiciary
1967 SENATE REPORT, supra note 26, at 11.

62

http://jnet.ao.dcn/Judges/Magistrate_Judges/Authority/Inventory.html 63

See supra notes 50, 55 and 56 and accompanying text. 64

1967 SENATE REPORT, supra note 26, at 8. 

65

18

Committee did not wish to discard the old system entirely:

Although the present U.S. commissioner system is in many ways defective,

your committee believes it is neither practical nor desirable simply to

abolish the commissioner system and transfer the functions now performed

by that office to the U.S. district court judges, who are already overburdened

by their present duties and not geographically situated to service the needs

of remote areas of the country.62

The Federal Magistrates Act therefore included 28 U.S.C. § 636(a), authorizing magistrates

to exercise all powers and duties conferred or imposed upon commissioners by law or by the Federal

Rules of Criminal Procedure. These duties are discussed in detail in the Inventory of United States

Magistrate Judges Duties.

63

(2) Criminal Trial Duties

Since 1940 U.S. commissioners had been authorized to try petty offense cases arising solely

from federal enclaves. The Federal Magistrates Act amended 28 U.S.C. § 636(a) and 18 U.S.C. §

3401 to provide magistrates with more extensive trial authority. Magistrates could try certain "minor

offenses" without regard to where the offense was alleged to have been committed. 

The term "minor offenses," as defined by amended section 3401(f), included certain

misdemeanors punishable by imprisonment not exceeding one year, or a fine not exceeding $1,000,

or both. The magistrate's authority, however, was contingent upon: (1) the magistrate's special

designation by the district court to try minor offenses; (2) the defendant's written consent to be tried

before the magistrate; and (3) the defendant'sspecific waiver of the right to trial before a district judge

and of any right to trial by jury.

The constitutionality of the criminal trial provisions of the Federal Magistrates Act was

studied and discussed in great detail by both the Senate and House committees. However, a 64

severability provision [Title V of the Act] was added to the bill "in the unlikely event that a

constitutional challenge to the [expanded minor offense] jurisdiction is sustained."65
The requirement that a special master serve pursuant to the conditions imposed 66

by Fed. R. Crim. P. 53 was added as a clarification in response to comments

made by the Criminal Law Committee. This requirement was meant to

"protect against any abdication of the decisionmaking responsibility that is

properly that of the district courts." 1967 SENATE REPORT, supra note 26,

at 25. See also Staff Memorandum, Restrictions on the Use of Special

Masters, reprinted in 1966-67 Senate Hearings, supra note 10, at 281-83.

The legislative history explained that a qualified, experienced magistrate would 67

likely acquire an expertise reviewing prisoner petitions for district judges. "It

is hoped that assignment of this function to magistrates will afford some degree

of relief to district judges and their law clerks, who are presently burdened with

burgeoning numbers of habeas corpus petitions and applications..." 1967

SENATE REPORT, supra note 26, at 26.

1968 HOUSE REPORT, supra note 3, at 19; 1967 SENATE REPORT, supra 68

note 26, at 25.

19

(3) Additional Duties

In enacting the Federal Magistrates Act in 1968, Congress intended to upgrade the system of

judicial officers below the level of the district judge. In addition to the powers previously conferred

upon U.S. commissioners, the Act created 28 U.S.C. § 636(b) to permit courts to assign to magistrates

"such additional duties as are not inconsistent with the Constitution and laws of the United States,"

including:

(1) service as a special master in an appropriate civil action, pursuant to the Federal Rules

of Civil Procedure;66

(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil

or criminal actions; and

(3) preliminary review of applications for posttrial relief made by individuals convicted of

criminal offenses, and submission of a report and recommendations to facilitate the

decision of the district judge having jurisdiction over the case as to whether there should

be a hearing.67

The legislative history of the bill emphasized that the "additional duties" that could be

delegated by district judges to United States magistrates under 28 U.S.C. § 636(b) were not limited

to the specific functions listed in that subsection of the statute. "The mention of these three categories

is intended to illustrate the general character of duties assignable to magistrates under the act, rather

than to constitute an exclusive specification of duties so assignable."68

The Senate committee report discussed at length the flexibility with which courts could

delegate additional duties to magistrates:
1967 SENATE REPORT, supra note 26, at 26.

69

Id. at 24.

70

20

It seems unwise to your committee to require that the district courts give

magistrates duties other than those traditionally performed by commissioners.

It is hoped, however, that in their discretion the district courts will find it

useful to lighten their own burden in this way.

If district judges are willing to experiment with the assignment to magistrates

of other functions in aid of the business of the courts, your committee

believes that there will be increased time available to judges for the careful

and unhurried performance of their vital and traditional adjudicatory duties,

and a consequent benefit to both efficiency and the quality of justice in the

Federal courts. Your committee wishes to emphasize that this provision of

the act permitting assignments to magistrates cannot be read in derogation of

the fundamental responsibility of judges to decide the cases before them;

instead it contemplates assignments to magistrates under circumstances

where the ultimate decision of the case is reserved to the judge, except in

those instances where action can properly be taken by a nonarticle III judge.

The duties assignable to magistrates under section 636(b) are intended to

supplement, rather than supplant, the duties imposed upon these officers in

other provisions of the act. It is not anticipated that magistrates will be

assigned additional duties under section 636(b) to such a degree that

interference with their specific statutory functions will result....69

The additional duties provision of section 636(b), however, restricted the exercise of such

authority to "any full-time United States magistrate, or, where there is no full-time magistrate

reasonably available, any part-time magistrate specially designated by the court...." The 1967 Senate

report briefly discusses the restrictions imposed on part-time magistrates: "It is anticipated that this

provision will be used by the district courts mainly to make assignments to full-time magistrates, but

the act also permits the assignment of additional duties to any part-time magistrate when there is no

full-time U.S. magistrate reasonably available."70

The provision also included a requirement that additional duties be assigned to magistrates

only pursuant to local rules adopted by a majority of the district court judges:

No individual judge may give a magistrate additional duties that are not

authorized by these rules. Involving the entire court in the process by which

responsibilities under subsection 636(b) are assigned not only guards against

the possibility that a magistrate may be given additional duties that unduly

interfere with the performance of his regular responsibilities, but also reduces

the possibility that a magistrate will be given conflicting assignments by
Id. at 24-25. 71

1967 SENATE REPORT, supra note 26, at 21.

72

JCUS-OCT 70, pp. 67-70. 73

21

different judges of the court. Furthermore, providing that assignments are to

be governed by rule of court protects against potential abuses of the

assignment power by individual judges who, in misguided attempts to

expedite the business before them, might unwittingly delegate to magistrates

responsibilities that are more properly discharged by the judge.71

4. Implementation of the Magistrates System

a. Establishment of Magistrate Positions

The Federal Magistrates Act empowered the Judicial Conference to provide for changes in

the number, locations, and salaries of full-time and part-time magistrates. The Senate report states

as follows:

Your committee declares its hope that the Conference will establish and

maintain a system of U.S. magistrates that is flexible enough to continually

meet the demands of a dynamic society. The dissolution of a particular

magistracy, its consolidation with another, a change of location, the creation

of a new position, or the adjustment of a magistrate's salary -- each of these

actions ought to follow promptly the recognition that the change is desirable.

Congressional action on each and every minor change would be time

consuming and inappropriate. The authority to promulgate such changes in

a system the quantative incidents of which it established belongs to the

Judicial Conference of the United States, both as a logical extension of its

authority to establish the number, location, and salaries of magistrates, and

as a necessary expedient in insuring prompt response to manifest needs.

72

Changes could be made with or without a prior survey by the Director of the Administrative Office.

The magistrates system was quickly established in five pilot districts and the first United

States magistrate took office on May 1, 1969. Nationwide surveys were then conducted by the

Administrative Office to determine the needs of each district court for magistrate services. Following

consideration of the surveys, the Judicial Conference in 1970 authorized the district courts to fill 542

positions: 82 full-time magistrate positions, 449 part-time magistrate positions, and 11 "combination"

positions - in which part-time referees in bankruptcy or clerks or deputy clerks of court serve

concurrently as part-time magistrates.73
The committee was originally called the Committee to Implement the Federal 74

Magistrates System. Its name was changed by the Judicial Conference in 1972

to the Committee on the Administration of the Federal Magistrates System. On

June 4, 1991, the Executive Committee of the Judicial Conference changed the

name to the Committee on the Administration of the Magistrate Judges System

in order to reflect the legislative change in title to magistrate judge.

395 U.S. 989 (1969). 75

JCUS-MAR 69, pp. 32-33. The Conflict-of-Interest Rules for Part-Time 76

Magistrate Judges, as amended, are located in Vol. II, Ch. III of the Guide to

Judiciary Policies and Procedures.

Id. at 79.

77

22

The 542 magistrate positions authorized by the Judicial Conference replaced more than 700

United States commissioner and "national park commissioner" positions. After the appropriation of

funds by the Congress, appointments to the United States magistrate positions across the country

began to be made by the courts in late 1970. By July 1, 1971, the United States magistrates system

had replaced the commissioner system in all the district courts.

b. Administration and Oversight

The Judicial Conference and the Administrative Office of the United States Courts began

implementing the new legislation shortly after its enactment. The Conference established a

committee of judges to oversee the development of the magistrates system, and the Director of the

Administrative Office established the Magistrates Division to administer the program.74

Administrative regulations governing the daily operation of the magistrates system were approved; jurisdictional guidelines and model local rules for the delegation of duties to magistrates were

distributed to the courts; and various educational programs were presented to acquaint judges with

the potential uses of magistrates. Rules of procedure to govern the trial of minor offenses before

magistrates were approved by the Supreme Court on May 19, 1969.75

At its March 1969 session the Judicial Conference adopted the first six conflict-of-interest

rules to define the conduct of part-time magistrates. The rules preclude a part-time magistrate and 76

his or her partners and associates from appearing in any case in which the magistrate has been

involved in connection with official court duties. The rules also preclude part-time magistrates from

appearing as counsel in any criminal action in any court of the United States, and their partners and

associates from appearing in any criminal case in the district in which the part-time magistrate serves.

The Judicial Conference adopted a seventh rule on the floor of its meeting in October 1969.77

Rule 7 prohibits a part-time magistrate who is assigned additional duties pursuant to 28 U.S.C.
Since rule 7 was adopted on the floor of the Judicial Conference without 78

definitive recommendations by the Magistrates Committee, no reports exist to

provide insight into why prisoner matters were excepted from the general

prohibitions of the rule. In July 1978, the Magistrates Committee reviewed

rule 7 and determined that the exception should not be expanded to allow parttime magistrates who practice law in federal court to conduct evidentiary

hearings in prisoner cases.

JCUS-MAR 77, p. 27.

79

Id. at 28.

80

JCUS-OCT 72, pp. 67-68. 81

23

§ 636(b) from appearing as counsel in any case, civil or criminal, in the district court for which he or

she is appointed. Excepted from the prohibition are part-time magistrates whose additional

assignments are limited to the review of prisoner petitions or service as a special master in a specified

case.

78

The Judicial Conference did not comment upon its intent in enacting rule 7 of the conflict-ofinterest rules until its meeting in March 1977:

The rule was adopted in recognition of expressed concerns that it would be

inappropriate to assign substantial "additional duties" to a lawyer practicing

before the court which he serves. The Conference considered the possible

appearance of favoritism, as well as the potential discomfort that a private

attorneymight feel, when opposing counsel in one case is the same individual

who will prepare an important ruling or conduct a pretrial conference in

another case in which the attorney has an interest.

Technically, any duty which could not be performed by a United States

Commissioner or is not listed in 28 U.S.C. §636(a) may be denominated an

"additional duty," and thus fall within the scope of Conflict-of-Interest Rule

7.79

The Conference at that time agreed to expand the rule 7 exceptions to the prohibition on the

performance of additional duties by part-time magistrates to include the receipt of indictments

returned by grand juries and the conduct of arraignments.

80

Rule 8 of the conflict-of-interest rules was adopted by the Judicial Conference in October

1972. This rule prevents part-time magistrates from using their office to promote their private law 81

practice, and from including their official title on the letterhead for their private practices.
See H.R. REP. NO. 1037, 92d Cong., 2d Sess. 2 (1972). 82

Under the Federal Salary Act of 1967 as amended, a Citizens' Commission on 83

Public Service and Compensation is formed every four years to make

recommendations to the President on the appropriate level of compensation for

the Vice President and for positions in the Executive Branch from Cabinet

offices through Level V of the Executive pay scale, for members of Congress,

and for Supreme Court justices, judges, and other members of the judiciary

except bankruptcy judges. 2 U.S.C.A. § 351 et seq. (West 1992). The

Commission makes its recommendations to the President, who in turn submits

recommendations to Congress at the beginning of the calendar year. Congress

amended the Salary Act in 1978 to give the Commission jurisdiction to make

recommendations as to the salaries of magistrates, effective October 1, 1979.

84 H.R. 7375, 92d Cong., 1st Sess. (1971).

24

Both Congress and the Judicial Conference have expressed continuing concern over the

appearance of impropriety resulting from the performance of judicial functions by part-time judicial

officers who continue to maintain a private law practice. This concern is reflected in the Conference's

on-going implementation through the survey process of the preference for a system of primarily fulltime magistrates; see § 16 (m)(2), infra.

5. The 1972 Amendments

a. Salary

The 1968 Act authorized the Judicial Conference to set the salaries of full-time and part-time

magistrates at the same rates as those authorized for referees in bankruptcy. Through drafting

oversight, however, the legislation neglected to provide a mechanism for the Judicial Conference to

make periodic adjustments in magistrates' salaries. Accordingly, the salaries of magistrates were 82

"capped" by law at a fixed maximum of $22,500 for a full-time magistrate and $11,000 for a part-time

magistrate, while the compensation of referees in bankruptcy and other federal officers and employees

increased periodically.83

In 1971 legislation was introduced at the request of the Judicial Conference to correct the

oversight in the 1968 Act and restore parity between magistrates and referees in bankruptcy. The 84

bill was approved by the House Judiciary Committee on May 2, 1972. On the floor of the House,

however, an amendment was added to limit the maximum salary of a full-time magistrate to 75

percent of a district judge's salary. As amended, the legislation passed the House of Representatives

on May 1, 1972.

The Senate Judiciary Committee approved the bill on August 16, 1972, with a further

amendment fixing the maximum salary for a part-time magistrate at $15,000. The Committee
S. REP. NO. 1065, 92d Cong., 2d Sess. 4 (1972), reprinted in 85 1972

U.S.C.C.A.N. 3350, 3353; Magistrate System: Hearing on H.R. 7375 Before

the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on

the Judiciary, 92d Cong., 2d Sess. 2, 16-20, 24-27, 33, 45-49 (1972). In 1977

and 1979, the Senate Subcommittee reiterated the view that the Judicial

Conference should do more to create additional full-time magistrate positions.

S. REP. NO. 344, 95th Cong., 1st Sess. 7-8 (1977) [hereinafter cited as 1977

SENATE REPORT]; S. REP. NO. 74, 96th Cong., 1st Sess. 7-9 (1979),

reprinted in 1979 U.S.C.C.A.N. 1469, 1476-77 [hereinafter cited as 1979

SENATE REPORT]. The Judicial Conference has on several occasions taken

actions to follow the Congressional mandate; see generally § 16(m)(2), infra.

S. REP. NO. 1065, 92d Cong., 2d Sess. 4 (1972). 86

87 Pub. L. No. 92-428, 86 Stat. 721 (1972), codified as amended at 28 U.S.C.

§ 634(a) (1988).

88 H.R. 9180, 92d Cong., 1st Sess. (1971).

S. REP. NO. 617, 92d Cong., 2d Sess. 2 (1972). 89

25

imposed the ceiling on part-time salaries in order to encourage the Judicial Conference to create more

full-time magistrate positions. Stressing the "expressed Congressional intent to create and maintain

a system of as many full-time magistrates as possible," it urged the Judicial Conference to establish

more full-time magistrate positions and decrease the number of part-time positions. Although the 85

Committee acknowledged that in most areas it was "better economics" for an individual to remain

a part-time magistrate and a part-time lawyer, it stated that the possible conflict-of-interest problems

inherent in the office of part-time judicial officers should be avoided.86

The House concurred in the Senate amendments, and the legislation was signed into law on

September 21, 1972.87

b. Inter-district Assignments of Magistrates

The Federal Magistrates Act of 1968 made no provision for the temporary assignment of

magistrates from one district to another to meet emergency situations and caseload backlogs. An

amendment to 28 U.S.C. § 636 was introduced in the 92d Congress to provide that "in an emergency

and upon the concurrence of the chief judges of the districts involved," a magistrate may be

temporarily assigned to perform duties in a district other than the district of the magistrate's appointment.88

The measure received the support of the Administrative Office and the Department of Justice,

and was approved by the Judicial Conference in October 1971. The bill was signed into law on 89
90 Pub. L. No. 92-239, §§ l, 2, 86 Stat. 47 (1972), codified as amended at 28

U.S.C. § 636(f) (1988).

91 TPO, Inc. v. McMillen, 460 F.2d 348 (7th Cir. 1972) (motion to dismiss);

Wedding v. Wingo, 483 F.2d 1131 (6th Cir. 1973), aff' d, 418 U.S. 461 (1974)

(habeas corpus evidentiary hearing); Ingram v. Richardson, 471 F.2d 1268 (6th

Cir. 1972) (recommended disposition in determination of social security

benefits).

92 Campbell v. United States District Court, 501 F.2d 196 (9th Cir.), cert.

denied, 419 U.S. 879 (1974) (motion to suppress); Givens v. W.T. Grant Co.,

457 F.2d 612 (2d Cir.), vacated on other grounds, 409 U.S. 56 (1972) (motion

to dismiss); Remington Arms Co. v. United States, 461 F.2d 1268 (2d Cir.

1972) (motion for summary judgment); and Noorlander v. Ciccone, 489 F.2d

642 (8th Cir. 1973) (habeas corpus evidentiary hearing).

26

March 1, 1972.90

In March 1998, upon a recommendation of the Magistrate Judges Committee, which was

based on in part on input from the circuit judicial councils, the Judicial Conference approved written

standards and procedures for inter-district assignments under the title, Judicial Conference Guidelines

for Intracircuit and Intercircuit Assignments of United States Magistrate Judges.

6. Jurisdictional Uncertainty

The "additional duties" subsection of the 1968 Act proved to be inadequately drawn, resulting

in conflicting opinions among the courts of appeals as to the specific types of judicial proceedings

that district judges could appropriately delegate to United States magistrates under 28 U.S.C. §

636(b).

Several circuit court decisions invalidated references of a wide range of duties to magistrates

under 28 U.S.C. § 636(b). The appellate court decisions invalidating references to magistrates were 91

based on purely statutory, rather than constitutional, grounds. Nevertheless, several decisions

expressed concern as a matter of policy over the potential abdication of judicial responsibilities by

district judges in delegating decision-making to magistrates.

Other decisions of the courts of appeals upheld an equally wide variety of references to

magistrates under the pertinent statute. Special master references to magistrates were approved in 92

individual cases in accordance with the strictures of the Federal Rules of Civil Procedure. Several

courts of appeals also spoke approvingly of the assistance that magistrates had provided to the district

courts in expediting litigation.
S. REP. NO. 625, 94th Cong., 2d Sess. 3 (1976) [hereinafter cited as 1976 93

SENATE REPORT]. See also [1974] DIR. AD. OFF. U.S. CTS. ANN. REP.

149-51.

[1974] DIR. AD. OFF. U.S. CTS. ANN. REP. 146. 94

Compare 95 Noorlander v. Ciccone, 489 F.2d 642 (8th Cir. 1973), with Wedding

v. Wingo, 483 F.2d 1131 (6th Cir. 1973), aff' d, 418 U.S. 461 (1974) and

Rainha v. Cassidy, 454 F.2d 207 (1st Cir. 1972).

96 418 U.S. 461 (1974).

97 28 U.S.C. § 2241-2255 (1988).

Compare 98 Yascavage v. Weinberger, 379 F. Supp. 1297 (M.D. Pa. 1974), with

Ingram v. Richardson, 471 F.2d 1268 (6th Cir. 1972).

99 Mathews v. Weber, 423 U.S. 261, 270 (1976).

27

Despite the appellate court differences, most district courts progressively expanded the

responsibilities of magistrates, particularly the conduct of pretrial proceedings in civil and criminal 93

cases and the review of prisoner petitions. In several districts the judges delegated to magistrates 94

the function of presiding over evidentiary hearings in habeas corpus cases.

In June 1974, the Supreme Court acted for the first time on a jurisdictional issue affecting

magistrates and resolved the intercircuit conflict that had developed regarding the authority of

magistrates in habeas corpus cases. In Wingo v. Wedding, the Court held by a vote of 7 to 2 that 95 96

under the Habeas Corpus Act and subsection 636(b)(3) of the Federal Magistrates Act, a district 97

judge lacked authority to designate a magistrate to conduct an evidentiary hearing in a habeas corpus

action.

In January 1976 the Supreme Court resolved another intercircuit conflict and ruled

98

unanimously that a preliminary review and submission by a magistrate of a report and recommended

disposition in a social security appeal was a reference falling "well within the range of duties

Congress empowered the district courts to assign" to magistrates.99

7. Impetus for Redrafting the Jurisdictional Provisions of the Federal Magistrates Act

The Supreme Court decision in Wingo v. Wedding proved to be the principal catalyst for

legislative reformulation of the "additional duties" jurisdiction of magistrates. Chief Justice Burger

pointed the way in his vigorous dissent in the case, in which he expressly invited the Congress to

enact new legislation:
100 Wingo v. Wedding, 418 U.S. 461, 487 (1974) (Burger, C.J., dissenting).

Report to the Congress by the Comptroller General of the U.S., The U.S. 101

Magistrates: How Their Services Have Assisted Administration of Several

District Courts: More Improvements Needed, 19 (1974) (No. B-133322).

See Silberman, Masters and Magistrates, Part 1: The English Model, 50 102

N.Y.U. L. REV. 1070, 1079-1104 (1975).

Kirks, Metzner, King, Hatchett, Schreiber & Sensenich, Report of the 103

Committee to Study the Role of Masters in the English Judicial System (Federal

Judicial Center 1974).

See, e.g., Freedom of Information Act (1967), as amended at 104 5 U.S.C. § 552

(1988); Occupational Health and Safety Act (1970), as amended 29 U.S.C.A.

§§ 651 et seq (West Supp. 1991); Equal Employment Opportunity Act [Title

28

In any event, now that the Court has construed the Magistrates Act contrary

to a clear legislative intent, it is for the Congress to act to restate its intentions

if its declared objectives are to be carried out.100

The Supreme Court decision in Wingo v. Wedding and the continuing conflict in the decisional

law interpreting the jurisdictional provisions of the 1968 Act, however, were not the only factors

leading to eventual amendment of the statute. Several other events also provided an impetus for

clarification and expansion of the jurisdiction of magistrates.

General Accounting Office Report. In September 1974 the Comptroller General submitted

a report to the Congress on the operation of the federal magistrates system in which he recommended,

in part: (1) that the Judicial Conference take the lead in encouraging district judges to make greater

use of magistrates under the existing law; (2) that the Congress further define the "additional duties"

jurisdiction of magistrates; and (3) that the Congress expand the criminal trial jurisdiction of

magistrates to include more misdemeanors.

101

English Visit. In early 1974 a delegation of district judges and magistrates visited England

to study the operation of masters in the English judicial system. In the Queen's Bench Division of the

High Court of Justice masters handle all preliminarymatters and dispose of the great majority of civil

cases filed in the court, without the need for action by a judge. The delegation published a report 102

in September 1974 praising the effectiveness of the English procedures and expressing confidence

that the federal district courts could duplicate the successful English experience through the greater

use of United States magistrates.103

Growing Caseloads. In addition to normal, across-the-board increases in judicial business,

several laws creating new federal causes of action were passed by the Congress, giving greater access

to the federal trial courts. The continuing press of business appeared to require the reference of 104
VII] (1972), as amended at 42 U.S.C. § 2000e (1988); Consumer Credit

Protection Act (1968), as amended at 15 U.S.C.A. § 1601 et seq. (West Supp.

1991); Fair Credit Reporting Act (1970), as amended at 15 U.S.C.A. §§ 1681a

et seq (West Supp. 1991);; and the Consumer Product Safety Act (1972), as

amended at 15 U.S.C.A. §§ 2051 et seq (West Supp. 1991).

105 Pub. L. No. 93-619, Title 1, § 101, 88 Stat. 2076 (1975), codified as amended

at 18 U.S.C.A. §§ 3161 et seq (West Supp. 1991).

Reprinted in Jurisdiction of United States Magistrates: Hearings on S. 1283 106

Before the Subcomm. on Improvements in Judicial Machinery of the Senate

Comm. on the Judiciary, 94th Cong., 1st Sess. 4 (1975) [hereinafter cited as

1975 Senate Hearings].

JCUS-MAR 75, pp. 31-32. The Conference also approved a draft bill to

107

eliminate the requirement that a defendant in a petty offense case execute a

written waiver of his right to be tried by a district judge and consent to be tried

before a magistrate. The Conference noted that H.R. 14535, 93d Congress,

which it had previously approved, had been resubmitted in the 94th Congress.

The bill would have expanded the trial jurisdiction of magistrates to include

misdemeanors punishable by fines of up to $5,000, exempted petty offense

cases from the application of the federal juvenile delinquency statute,

29

additional work to magistrates if the courts were to be able to cope with their growing and

increasingly complex caseloads.

Speedy Trial Act. The implementation of the Speedy Trial Act in January 1975, which 105

imposed strict deadlines and requirements for the conduct of proceedings in federal criminal cases,

heightened existing docket pressures and necessitated adjustments in district court procedures and

scheduling. The Magistrates Committee was well aware of the impact of the Act when it proposed

draft language to amend the Federal Magistrates Act to the Conference:

It is mandatory that the district courts make greater use of their magistrates if the

guidelines of the bill are to be achieved without further drastically increasing the size

of the judiciary.106

8. The Jurisdictional Amendments of 1976

a. Senate Consideration

In March 1975 the Judicial Conference proposed draft legislation to clarify and expand the

jurisdiction of magistrates by replacing section 636(b) of the 1968 Act with a completely new

jurisdictional provision authorizing a judge, inter alia, to designate a magistrate to handle "any

pretrial matter" pending in the district court. On March 21, 1975, Senator Quentin Burdick 107
authorized magistrates specifically to place a defendant on probation prior to

trial or plea, authorized the payment of transcript costs for indigents in certain

civil proceedings conducted by magistrates, eliminated the requirement that

changes approved by the Conference in magistrate positions not take effect for

60 days after they are promulgated, and clarified the law as to combination

bankruptcy judge-magistrate positions. Several of these proposals were

adopted, in whole or in part, in the Federal Magistrate Act of 1979. See §§ 11

and 12, infra.

The legislation was introduced in the House of Representatives as H.R. 5575. 108

In addition, Representative Railsback introduced the bill as part of H.R. 6150,

an omnibus measure affecting the courts.

The text of the Judicial Conference's draft bill and supporting statement are 109

reprinted in 1975 Senate Hearings, supra note 106, at 33.

Id. at 34.

110

121 CONG. REC. 19,232 (1975). 111

1975 Senate Hearings, supra note 106. 112

1976 SENATE REPORT, supra note 93. 113

30

introduced the legislation for the Conference as S. 1283.108

The Judicial Conference's proposed legislation was brief and general in nature. The 109

proposal intended to give magistrates a major role in expediting civil and criminal litigation at the

pretrial stage, thereby freeing district judges "to try cases and hear important matters such as

preliminary injunctions." The staff of the Senate Judiciary Subcommittee on Improvements in 110

Judicial Machinery proposed amendments to make the bill more specific both as to magistrates'

jurisdiction and as to court procedures. The chief counsel for the Subcommittee then conferred with

the Chairman of the Magistrates Committee of the Judicial Conference, with representatives of the

Administrative Office, and with several magistrates and made refinements in the legislation.111

Senator Burdick thereupon introduced an amended version of S. 1283 on June 17, 1975.

Brief hearings on the legislation were conducted before the Senate Subcommittee on July 16,

1975, and additional refinements were made in the bill at the request of the Chairman of the 112

Magistrates Committee. On February 3, 1976, S. 1283 was approved by the Judiciary Committee of

the Senate.113

The bill dealt only with the "additional duties" authority of magistrates under 28 U.S.C. §

636(b), and it focused on the assistance that magistrates may provide to district judges in the conduct

of pretrial proceedings.
Id. at 1; H.R. REP. NO. 1609, 94th Cong., 2d Sess. 5-6 (1976), reprinted in 114

1976 U.S.C.C.A.N. 6162 [hereinafter cited as 1976 HOUSE REPORT].

115 Wingo v. Wedding, 418 U.S. 461 (1974). See 1976 SENATE REPORT, supra

note 93, at 3-4; 1976 HOUSE REPORT, supra note 114, at 5-6. See also §

6, supra.

1976 HOUSE REPORT, supra note 114, at 1-4. 116

117 Pub. L No. 94-577, 90 Stat. 2729 (1976).

31

The purpose of the bill is to amend section 636(b), title 28, United States

Code, in order to clarify and further define the additional duties which may

be assigned to a United States Magistrate in the discretion of a judge of the

district court. These additional duties generally relate to the hearing of

motions in both criminal and civil cases, including both preliminary

procedural motions and certain dispositive motions. The bill provides for

different procedures depending upon whether the proceeding involves a

matter preliminary to trial or a motion which is dispositive of the action. In

either case the order or the recommendation of the magistrate is subject to

final review by a judge of the court.

114

It did not affect the authority of magistrates, under 28 U.S.C. § 636(a), to try criminal misdemeanor

cases or to conduct initial proceedings in criminal cases. The bill was designed to supersede the

Supreme Court's decision in Wingo v. Wedding, and it overruled several decisions of the courts of

appeals that had invalidated various references of pretrial matters to magistrates under the

jurisdictional provisions of the 1968 Act.115

The bill passed the Senate on February 5, 1976.

b. House Consideration

In the House of Representatives, S. 1283 was approved by the Judiciary Committee on

September 17, 1976, with amendments designed to: (1) clarify the scope of review to be applied by

a district judge to a magistrate's recommendations or determinations; and (2) incorporate the

provisions of the proposed legislation into the newly enacted federal rules governing habeas corpus

cases and proceedings under 28 U.S.C. § 2255.

116

The House of Representatives passed the bill, as amended by its Judiciary Committee, on

October 1, 1976, and the Senate concurred in the House amendments. The bill was signed into law

on October 21, 1976.117
1976 SENATE REPORT, supra note 93, at 6. 118

See supra note 70 and accompanying text. The 1976 Senate and House reports 119

do not discuss the effect of this revision upon the referral of additional duties

to part-time magistrates.

1976 SENATE REPORT, supra note 93, at 5. Accord, 1976 HOUSE 120

REPORT, supra note 114, at 7.

1976 SENATE REPORT, supra note 93, at 6. Accord, 1976 HOUSE 121

REPORT, supra note 114, at 7.

32

c. Provisions of the 1976 Amendments

Congress determined that the 1976 amendments to the Federal Magistrates Act "will further

improve the judicial system by clearly defining the additional duties which a judge of the district court

may assign to a magistrate in the exercise of the discretionary power to so assign as contained in

Section 636(b)...." The 1976 amendments to the Act completely revised section 636(b), in effect

118

deleting the language permitting the exercise of additional duties by part-time magistrates only when

no full-time magistrates were available.119

Congress' goal in enacting the 1976 amendments was to expand the general authority of

magistrates to handle additional duties. The Senate Judiciary Committee wrote:

Rather than constituting "an abdication of the judicial function", it seems to

the committee that the use of a magistrate under the provisions of [§ 636(b)],

as amended, will further the congressional intent that the magistrate assist the

district judge in a variety of pretrial and preliminary matters thereby

facilitating the ultimate and final exercise of the adjudicatory function at the

trial of the case.120

The Senate report noted that without the assistance furnished by magistrate judges in handling

additional duties for the court, district judges would have to devote a "substantial" portion of their

time to various procedural matters rather than to trying cases.121

Authority of District Judges. The legislation authorized individual judges of the district

courts to delegate judicial duties to magistrates under four separate lines of authority set forth in 28

U.S.C. § 636(b).

The bill revises in its entirety section 636(b) under which magistrates could

be assigned certain additional duties in the discretion of the court. This

discretionary power to assign additional duties to a magistrate is continued

but the discretion is vested in a judge of the district court rather than in a
1976 SENATE REPORT, supra note 93, at 7. Accord, 1976 HOUSE 122

REPORT, supra note 114, at 9. The original provision enacted in 1968

required additional duties to be referred to magistrates pursuant to rules

adopted by a majority of the district court judges; see generally note 70 and

accompanying text.

1976 SENATE REPORT, supra note 93, at 6. Accord, 1976 HOUSE 123

REPORT, supra note 114, at 8.

1976 SENATE REPORT, supra note 93, at 7. Accord, 1976 HOUSE 124

REPORT, supra note 114, at 9.

33

majority of all the judges of the court. Of course the scope of any permissible

additional duties to be assigned can still be agreed upon by a majority of the

judges, but the bill will permit exercise of the actual power of assignment to

a single judge. Since assignments are frequently made in individual cases,

or on an ad hoc basis, it seems preferable to vest the power in a single judge

who can execute any required order of assignment or reference.

122

In addition, the legislation provided for the promulgation of local rules effectuating its provisions.

The committee reports also discussed the constitutionality of the exercise of authority by non-Article

III judicial officers.

123

The initial sentence of the revised additional duties section begins: "Notwithstanding any

provision of law to the contrary--."

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" referring to "judge" or "court."124

This language applied to both dispositive and nondispositive matters referred under subparagraphs

(A) and (B) of § 636(b)(1).

Nondispositive Pretrial Matters. The legislation authorized a judge to designate a magistrate

to "hear and determine" with finality any pretrial matter in a civil or criminal case, except for eight

enumerated classes of motions which were viewed as "dispositive," or effectively dispositive of
Motions for injunctive relief, for judgment on the pleadings, for summary 125

judgment, to dismiss or quash an indictment or information made by the

defendant, to suppress evidence in a criminal case, to dismiss or to permit

maintenance of a class action, to dismiss for failure to state a claim upon which

relief can be granted, and to involuntarily dismiss an action for failure to

comply with an order of the court.

1976 SENATE REPORT, supra note 93, at 7. Accord, 1976 HOUSE 126

REPORT, supra note 114, at 9. See generally § 3.03(b), infra, and cases

listed therein. Some courts have occasionally referred postjudgment duties

under § 636(b)(1)(A); see infra § 3(c).

1976 SENATE REPORT, supra note 93, at 8. Accord, 1976 HOUSE 127

REPORT, supra note 114, at 10.

34

litigation. The Senate Judiciary Committee defined the scope of the phrase "any pretrial matter" 125

to include "a great variety of preliminary motions and matters which can arise in the preliminary

processing of either a criminal or a civil case."126

A magistrate's order would be subject to review by a district judge under the "clearly

erroneous or contrary to law" standard. The use of the phrase "[a] judge may reconsider" any order

entered by a magistrate on a nondispositive pretrial matter was intended to convey the Congressional

intent that such matters need not be heard a second time by a district judge:

However, if a party requests reconsideration based upon a showing that the

magistrate's order is clearly erroneous or contrary to law then the judge must

reconsider the matter. Of course, the judge has the inherent power to rehear

or reconsider a matter sua sponte.

127

The legislative history emphasized that a magistrate's order under subparagraph (A) of the revised

section was final, subject only to the ultimate right of review by a district court judge.

Dispositive Motions and Prisoner Matters. Subparagraph (B) of the revised section

authorized a judge to designate a magistrate to conduct hearings on prisoner petitions or on any of the

eight categories of excepted dispositive motions and file recommended findings of fact and a

recommended disposition with the judge:

The authority of the magistrate under subparagraph (B) is clearly more than

authority to make a "preliminary review". It is the authority to conduct

hearings and where necessary to receive evidence relevant to the issues

involved in these matters. Therefore, passage of S. 1283, as amended, will

supply the congressional intent found wanting by the Supreme Court in
1976 SENATE REPORT, supra note 93, at 9. Accord, 1976 HOUSE 128

REPORT, supra note 114, at 11.

1976 HOUSE REPORT, supra note 114, at 4. 129

1976 SENATE REPORT, supra note 93, at 10.

130

Id. Accord, 1976 HOUSE REPORT, supra note 114, at 11.

131

35

Wingo v. Wedding....

128

The revised section would also permit a judge to refer to a magistrate "for consideration and study"

social security cases challenging a determination of entitlement to benefits.

The expanded authority of magistrates to hold evidentiary hearings in prisoner cases and to

submit findings of fact and conclusions of law to a district judge received the support of many

witnesses during 17 days of hearing on the judicial system. The House report stated:

The vast majority of the chief judges who testified stated that the magistrates

were of assistance to the court in handling certain preliminary matters in both

civil and criminal cases, and were of greatest assistance in handling petitions

for the issuance of a writ of habeas corpus made by both state and federal

prisoners in an effort to obtain a collateral review of the original conviction.

A few of the district courts which had not made extensive use of the services

of the magistrates were encouraged to do so as a means of freeing time of

district court judges to preside at trials of other cases.129

The bill before the Senate Judiciary Committee did not include the "de novo determination"

standard of review ultimately contained in subparagraph (C) of the legislation signed into law.130

However, the report did discuss the sentence providing that a district judge "may accept, reject or

modify," in whole or in part, a magistrate's findings and recommendations.

The judge is given the widest discretion to "accept, reject or modify" the

findings and recommendation proposed by the magistrate, including the

power to remand with instructions. Thus, it will be seen that under

subparagraph (B) and (C) the ultimate adjudicatory power over dispositive

motions, habeas corpus, prisoner petitions and the like is exercised by a judge

of the court after receiving assistance from and the recommendation of the

magistrate.131

De Novo Determination. The House amendments clarified the intent of the Congress that a

district judge must make a "de novo determination" of a magistrate's recommendations on

case-dispositive motions. In other words, "the district judge in making the ultimate determination of
1976 HOUSE REPORT, supra note 114, at 3. 132

The approach of the House Committee, as well as that in general of the Senate, 133

was adopted from the decision of the United States Court of Appeals for the

Ninth Circuit in Campbell v. United States District Court, 501 F.2d 196 (9th

Cir.), cert. denied, 419 U.S. 879 (1974).

1975 Senate Hearings, supra note 106, at 35.

134

Id. 135

36

the matter, would have to give fresh consideration to those issues to which specific objection has been

made by a party." The House Judiciary Committee emphasized, however, that the use of the words 132

"de novo determination" in the legislation was 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 andmake 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.133

In its report to the Senate JudiciaryCommittee, the Judicial Conference discussed the de novo

review provision of the proposed amendments to the Federal Magistrates Act.

The argument may be made that the de novo review provisions will only

create another layer in the judicial process. Experience to date in the

nondispositive civil pretrial area of rulings by magistrates clearly shows that

appeals are seldom taken by losing litigants.

134

The Judicial Conference report noted that the de novo review provision was added to avoid any

objection that only Article III judges could ultimately determine dispositive issues, "although there

is respectable authority that finds congressional power sufficient to avoid any constitutional

objection."135

Special Masters and Trial by Consent. The legislation authorized a judge to appoint a

magistrate as a special master in any civil case upon the consent of the litigants. The legislation also

carried forward the provision of the 1968 Act authorizing a magistrate to be appointed as a special

master under Fed. R. Civ. P. 53, where "some exceptional condition" exists. The legislation also

added a provision authorizing a judge to appoint a magistrate to serve as a special master in any civil
At its March 1995 session, the Judicial Conference opposed Sec. 301(e) of 136

H.R. 667, the House version of the Prison Litigation Reform Act (PLRA),

Pub. L. No. 104-134, 110 Stat. 1321 (1996), which would have restricted

service as a special master in a conditions of confinement case to a magistrate

judge only, and would have limited the authority of a special master in such a

case to making findings on complicated factual issues only. [1995] Judicial

Conference of the U.S. Rep. 28-29. These provisions were not included in the

“ special master” provision of the PLRA, 18 U.S.C. § 3626, as enacted.

137 352 U.S. 249 (1957). See 1976 SENATE REPORT, supra note 93, at 10.

Accord, 1976 HOUSE REPORT, supra note 114, at 12.

37

case, with the parties’ consent, without regard to the provisions of Rule 53. The Senate Judiciary 136

Committee report and the House Judiciary Committee report expressed the view that experience in

the use of magistrates as special masters should serve to occasion a reappraisal of the restrictions

imposed in LaBuy v. Howes Leather Co.137

Additional Duties. Magistrates would be authorized, as under the 1968 Act, to perform any

"additional duties as are not inconsistent with the Constitution and laws of the United States." The

Senate Judiciary Committee's report emphasized the expansive nature of this "catch-all" provision:

A similar provision is contained in the existing legislation. This subsection

enables the district courts to continue innovative experimentations in the use

of this judicial officer. At the same time, 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.

Under this subsection, the district courts would remain free to experiment in

the assignment of other duties to magistrates which may not necessarily by

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.

If district judges are willing to experiment with the assignment to magistrates

of other functions in aid of the business of the courts, there will be increased

time available to judges for the careful and unhurried performance of their

vital and traditional adjudicatory duties, and a consequent benefit to both
1976 SENATE REPORT, supra note 93, at 10-11. Accord, 1976 HOUSE 138

REPORT, supra note 114, at 12.

1976 SENATE REPORT, supra note 93, at 11. Accord, 1976 HOUSE 139

REPORT, supra note 114, at 13.

1976 SENATE REPORT, supra note 93, at 5. Accord, 1976 HOUSE 140

REPORT, supra note 114, at 7.

38

efficiency and the quality of justice in the Federal courts.138

Local Rules. Subsection 636(b)(4) provided that the district courts establish local rules to

govern the performance of the above duties by magistrates. The bill carried this requirement over

from the existing statute: 

It ensures that a magistrate will not be so burdened by assignments from one

judge that he cannot assist the other judges in the district. Further, by

requiring the promulgation of such local rules of the court, the statute

provides the local bar at least some advance notice of the potential

assignment of a case to a magistrate.139

The Judiciary Committee noted that the local rules could also provide procedures for review of a

magistrate's order or recommendation under either subparagraph (A) or (B).

Constitutionality. The Senate Judiciary Committee believed that the revisions of the Federal

Magistrates Act embodied in S. 1283 would "further the congressional intent that the magistrate assist

the district judge in a variety of pretrial and preliminary matters," and that the utilization of

magistrates pursuant to the bill would not constitute "an abdication of the judicial function." The 140

Committee also commented at length on Article III considerations generally.

[T]he committee believes that it should comment upon the contention that

Article III of the Constitution imposes a limitation upon the judicial functions

which this bill vests in a magistrate. In the federal court system, the primary

court of general jurisdiction has always been the district court and, as such,

it is an "inferior court" ordained and established by the Congress under

Article III. But this is not to say that the Congress may not create other

inferior courts. For example, it is believed that it would be competent for the

Congress to create below the district courts a court of limited jurisdiction

which would be roughly the equivalent of a municipal court in some of the

state systems. Multi-tiered court systems developed simply in recognition of

the fact that certain cases and judicial functions are of differing importance

so as to justify different treatment by the court system. While the U.S.

District Court has long been a single tiered court as far as original jurisdiction
1976 SENATE REPORT, supra note 93, at 6. Accord, 1976 HOUSE 141

REPORT, supra note 114, at 8.

142 Pub. L No. 94-520, 90 Stat. 2458 (1976).

S. REP. NO. 624, 94th Cong., 2d Sess. 1 (1976); H.R. REP. NO. 1607, 94th 143

Cong., 2d Sess. 1 (1976).

This provision, codified at 144 28 U.S.C. § 634(a), is still in effect. On April 1,

1984, however, the linkage with referees in bankruptcy was dissolved; see note

148, infra, and accompanying text. The provision was amended again in 1988

to allow the Judicial Conference to set the salaries of magistrates at an annual

rate equal to 92% of a district judge's salary, which is the salary of a

bankruptcy judge; see § 16(h)(1), infra.

39

is concerned, the Congress has nevertheless recognized that it is not feasible

for every judicial act, at every stage of the proceeding, to be performed by "a

judge of the court".141

9. Other Statutory Amendments

a. Salaries of Magistrates and Positions for the Virgin Islands

Concurrently, with its consideration of the 1976 jurisdictional amendments, the Senate enacted

legislation (S. 2923) to remove the provision of the 1972 salary amendments that had limited the

salary of a full-time magistrate to 75 percent of the salary of a district judge and the salary of a

part-time magistrate to a maximum of $15,000 per annum. The stated purpose of the legislation 142

was "to provide that full-time U.S. magistrates shall receive the same compensation as full-time

referees in bankruptcy and to adjust the salaries of part-time magistrates." It authorized the Judicial 143

Conference to set the salary of a full-time magistrate at any amount up to that of a full-time referee

in bankruptcy and the salary of a part-time magistrate at any rate up to one-half the salary of a

full-time magistrate. The bill passed the Senate on February 5, 1976. 144

The House of Representatives amended S. 2923 to add a change in 28 U.S.C. § 631(a) to

extend the operation of the federal magistrates system to the district court of the Virgin Islands. The

statute authorized the Judicial Conference to establish magistrate positions in the Virgin Islands on

the same basis as in the 92 United States district courts.

The bill passed the House as amended on September 29th, and the Senate concurred in the

House amendment on September 30th. The bill became law on October 17, 1976.
145 Pub. L. No.0 95-144, 91 Stat. 1212 (codified as amended at 10 U.S.C. § 955

(1988); 18 U.S.C.A. §§ 4105-15 (West Supp. 1991); 28 U.S.C. § 636(g)

(1988).

146 28 U.S.C. § 636(g) (1988).

147 18 U.S.C.A. § 4114 (West Supp. 1991).

148 Pub. L. No. 95-598, 95th Cong., 2d Sess. (1978) (codified as amended as Title

11 United States Code (1988) and 28 U.S.C.A. §§ 151 et seq (West Supp.

1991).

Id., § 231, amending 149 28 U.S.C. § 631(c) to strike out references in the Federal

Magistrates Act to referees in bankruptcy.

Id., § 232, amending 150 28 U.S.C. § 634(a) to set a maximum rate for a full-time

magistrate at $48,500, subject to adjustment under section 225 of the Federal

Salary Act of 1967 and 28 U.S.C. § 461. Section 634(a) has since been

amended; see § 16(h)(1), infra.

40

b. International Prisoner Transfers

In 1977 the Congress enacted legislation to implement treaties for the transfer of convicted

criminal offenders to serve the remainder of their commitment in the countries of which they are

citizens or nationals. Prior to such a transfer, proceedings must be conducted in the transferring 145

country to verify that the offender has consented knowingly and voluntarily to the transfer. The

legislation amended the Federal Magistrates Act to authorize United States magistrates to appoint

counsel and perform the necessary verification function in the United States and, when assigned by

a judge, to perform these functions in other countries.146

The legislation also provided that under certain circumstances an offender transferred to the

United States may be returned to the country from which he or she had been transferred. In such 147

cases a magistrate may be authorized to conduct the proceedings required for such action.

c. Bankruptcy Reform Act of 1978

In 1978 the Congress enacted omnibus legislation amending the substantive law of bankruptcy

and establishing a new federal bankruptcy court system. The legislation amended the Federal

148

Magistrates Act in two significant respects. First, it eliminated the authority of the Judicial

Conference to establish or continue combination bankruptcy judge-magistrate positions, effective

April 1, 1984. Second, it dissolved the linkage between the salaries of magistrates and bankruptcy 149

judges, effective April 1, 1984, and it expressly placed magistrates' maximum salaries under the

quadrennial pay adjustment mechanism established by law for other high-level government

officials. In addition, section 238 of the Bankruptcy Reform Act amended 150 28 U.S.C. § 1334(c) to
151 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50

(1982).

1975 Senate Hearings, supra note 106, at 19, 28.

152

The civil trial delegations were therefore made under the former section 636(b) 153

of the 1968 Act, which permits assignment of "such additional duties as are not

inconsistent with the Constitution and laws of the United States," or as special

master references under FED. R. CIV. P. 53.

41

prohibit district courts from referring bankruptcy appeals to magistrates or special masters.

In 1982 the Supreme Court invalidated the jurisdiction of the bankruptcy court over certain

claims arising entirely under state law. This decision ultimately resulted in additional legislation 151

by Congress in 1984. See § 2.16(d), infra.

10. Conduct of Civil Trials by Magistrates

The 1976 amendments to the Federal Magistrates Act clarified the pretrial role of magistrates

and broadened the range of cases in which a magistrate could be appointed as a special master. They

did not, however, deal specifically with the trial of civil cases by magistrates or their case-dispositive

authority.

Even before enactment of the 1976 jurisdictional revisions, however, magistrates had been

assigned by several district courts to try the issues of civil cases upon the consent of the litigants.

152

Such civil trial delegations were made under the long-standing tradition, untouched by the 1968 Act,

that parties may freely consent to refer cases for decision in the first instance to non-Article III

officers.

153

Although the "additional duties" language of 28 U.S.C. § 636(b) was relied upon by some

courts for authority to refer a civil case to a magistrate for trial on consent, the Congress had not

specified procedures for the ultimate adjudication of a case by a magistrate, for the entry of a final

judgment, or for appellate review following trial. To fill the void, some courts incorporated by

reference the appellate procedures and scope of judicial review set forth in rule 53(e) of the Federal

Rules of Civil Procedure, governing special masters. The United States Court of Appeals for the First

Circuit, for example, stated that:

[I]n the present state of the law we would be reluctant to approve even a

clearly worded consensual reference to a magistrate which purports to finally

bind the parties to his rulings of law. Until Congress, on reviewing the

experience under the Federal Magistrates Act, fashions a review procedure

for consensual reference for final (or semi-final) determination of all issues

of law and fact, it might be better to rely on the formulation contained in Rule
154 DeCosta v. Columbia Broadcasting Sys., 520 F.2d 499, 508 (1st Cir. 1975),

cert. denied, 423 U.S. 1073 (1976). See also Magistrate Act of 1977: Hearings

on S. 1612 and S. 1613 Before the Subcomm. on Improvements in Judicial

Machinery of the Senate Comm. on the Judiciary, 95th Cong., 1st Sess. 9-10

(1977) [hereinafter cited as 1977 Senate Hearings].

155 Horton v. State St. Bank & Trust Co., 590 F.2d 403 (1st Cir. 1979); Small v.

Olympic Prefabricators, Inc., 588 F.2d 287 (9th Cir. 1978); Taylor v. Oxford,

575 F.2d 152 (7th Cir. 1978); Sick v. City of Buffalo, 574 F.2d 689 (2d Cir.

1978).

42

53(e)(4).154

Even where the provisions of rule 53 were not made specifically applicable by decisional law,

the courts of appeals ruled uniformly that a district judge must personally order the entry of judgment

in any civil case tried before a magistrate.155

11. The Proposed Magistrate Act of 1977

a. Administration Proposal

As one of his initial acts as Attorney General, Griffin B. Bell established within the

Department of Justice an Office for Improvements in the Administration of Justice. The first major

legislative proposal developed by the new unit was the "Magistrate Act of 1977," designed to provide

litigants in the federal courts with more efficient and inexpensive justice and to reduce the burdens

of district judges by transferring certain categories of civil and criminal cases to magistrates for trial

and disposition.

A draft bill was prepared in March 1977 and circulated to a cross-section of the legal

community for comment. It provided for: (1) increasing the magistrates' criminal trial jurisdiction

to include all federal misdemeanors; (2) eliminating the requirement that a defendant in a petty

offense case consent to trial by a magistrate; (3) giving magistrates case-dispositive jurisdiction over

certain categories of civil cases, including social security and black lung benefit litigation, penalty and

forfeiture actions, and Federal Tort Claims cases with claims for relief not exceeding $10,000; and

(4) requiring the Judicial Conference to promulgate regulations governing the selection of magistrates

in order to upgrade the quality of the magistrates system.

Opposition by the Department of Health, Education and Welfare and by the Legal Services

Corporation resulted in a White House request for further consideration of the legislation before

submission to the Congress. The objections were apparently directed for the most part at provisions

in the bill that would have removed certain specified categories of cases, especially social welfare

cases, from district judges and relegated them for trial and ultimate disposition by United States
See 35 CONG. Q. WKLY. 833-34 (daily ed. April 30,1977). 156

Proposed Magistrate Act of 1977, 123 CONG. REC. S8767 (daily ed. May 26, 157

1977).

43

magistrates exclusively.156

In response to these objections, the Department of Justice deleted from the revised draft the

provision for mandatory diversion of specified categories of civil cases to magistrates. Instead, the

proposed case-dispositive jurisdiction of magistrates was to be limited to those cases in which the

parties expressly consented to trial before a magistrate.

In transmitting the bill to the Congress in May 1977, the Attorney General summarized its

basic purposes as improving access to the federal courts for the less advantaged and providing more

flexible use of scarce judicial resources:

The proposed Magistrate Act of 1977 recognizes the growing interest in the

use of magistrates to improve access to the courts for all groups, especially,

the less advantaged. The latter lack the resources to cope with the vagaries

of adjudication delay and expense. If their civil cases are forced out of court

as a result, they lose all their procedural safeguards. This outcome may be

becoming more pronounced as the requirements of the criminal Speedy Trial

Act increases its demands on the federal courts. The imaginative supply of

magistrate services can help the system cope and prevent inattention to a

mounting queue of civil cases pushed to the back of the docket by the Speedy

Trial Act.

The bill would allow the increased and more flexible use of fully competent

magistrate judicial officers with more limited tenure and salary requirements

to improve access to justice on a district-by-district basis. Magistrates would

be selectively placed to accommodate litigation peaks in particular districts

at particular times. These surges in litigation have characterized, for

example, the social security black lung disability cases. All this would be

accomplished without resort to the process of congressional confirmation.157

b. Congressional Action

(1) Senate Consideration

The revised Administration bill was introduced in the Senate as S. 1613 on May 26, 1977, by

Senators Dennis DeConcini and Robert Byrd. A companion bill was introduced in the House of
H.R. 7493 (introduced May 26, 1977). 158

See 1977 House Hearings, supra note 27, at 2, 29-35 159

1977 Senate Hearings, supra note 154. 160

See H.R. REP. NO. 1364, 95th Cong., 2d Sess. 9 (1978) [hereinafter cited as 161

1978 HOUSE REPORT].

The Department of Justice favored review by a district judge because it 162

reduced: (1) the cost of litigating an appeal through elimination of the costly

printing of briefs, (2) travel costs to the nearest seat of the court of appeals, and

(3) the costs of reproducing the record of the trial for the appellate court.

Consideration of the appeal by a single judge, rather than a panel of three

judges, also would better conserve judicial resources. Appeal to a district

judge, moreover, was seen as helping to relieve a severe workload crisis in the

courts of appeals. See 1977 Senate Hearings, supra note 152, at 153, 155-56

(testimony of Attorney General Bell); 105-06 (testimony of Professor Leo

Levin); 1977 House Hearings, supra note 27, at 183-84 (statement of Assistant

Attorney General Meador).

The witnesses were generally of the view that a direct appeal to the court of 163

appeals was necessary because the parties would not consent to trial by a

magistrate if they were denied their right to automatic and full review by the

circuit court. They also asserted that direct appeal would have the advantage

of providing a single procedure for the trial and appeal of all civil cases in the

district court and would avoid adding an extra layer of litigation and expense

to the judicial process. See 1977 Senate Hearings, supra note 152, at 75-76

44

Representatives by Congressman Peter Rodino. At the request of the Judicial Conference, Senator 158

DeConcini also introduced S. 1612, a separate bill to expand the "minor offense" jurisdiction of

magistrates, to eliminate the requirement that a defendant in a petty offense case consent to trial by

a magistrate, and to make the federal juvenile delinquency statute inapplicable in petty offense

cases.159

In June 1977 comprehensive hearings on the legislation were conducted by the Senate

Judiciary Subcommittee on Improvements in Judicial Machinery, chaired by Senator DeConcini.

160

Most of the witnesses supported increasing the civil and criminal jurisdiction of magistrates. A 161

difference of opinion surfaced at the hearings, however, regarding the alternate appeal routes to be

taken from a civil case tried by a magistrate. As introduced on behalf of the Department of Justice,

S. 1613 prescribed that any appeal from a magistrate be taken exclusively to a judge of the district

court. Further appeal to the court of appeals would be discretionary only and confined to questions 162

of law. A majority of the witnesses, however, objected to the Department's proposal and favored

taking appeals of civil cases tried by magistrates directly to the courts of appeals.163
(testimony of Judge Metzner); 95 (Magistrate Juda); 97 (Walter Evans); 130-31

(Thomas Ehrlich); 183 (Professor Silberman); 208-211 (Dennis Sweeney); 196

(John Frank); 222 (Arthur Burnett); 229 (Judge Ross). District judges,

moreover, were seen as being unlikely to refer cases to a magistrate for trial if

they would ultimately have to review them personally. ld., at 96 (Judge

Skopil); 115, 126 (Judge Sear).

1977 SENATE REPORT, supra note 85.

164

45

Following the hearings, the Administration and Judicial Conference bills were merged and

modified by the Subcommittee, which reconciled the conflicting views regarding appellate procedures

by providing in the bill for alternative appeal routes in civil cases. As modified, S. 1613 specified

that an appeal from a magistrate's judgment in a civil case would ordinarily be taken to a district

judge. The parties, however, by mutual consent could agree to have a final judgment of the district

court entered on the magistrate's order, with an appeal taken from the district court directly to the

court of appeals.

(2) Provisions of the Senate Bill

The bill was reported favorably by the full Judiciary Committee of the Senate on July 14,

1977, and it passed the Senate unanimously by voice vote on July 22, 1977. As approved by the 164

Senate, the principal provisions of the legislation were as follows:

(a) Civil Trial Jurisdiction. The bill authorized a full-time United States magistrate to try

any civil case, with or without a jury, and order the entry of judgment upon consent of the

litigants.

(b) Criminal Trial Jurisdiction. The jurisdiction of magistrates under 18 U.S.C. § 3401 was

expanded from "minor offenses" to all misdemeanors. Magistrates were authorized to try

such cases with a jury and to use the sentencing provisions of the Youth Corrections Act,

with limitations. In addition, the federal juvenile delinquency statute was made

inapplicable to petty offense cases generally.

(c) Selection of Magistrates. The bill required the Judicial Conference to promulgate

standards for the qualifications of magistrates and procedures for their selection. Each

individual selected as a full-time magistrate would have to be certified as competent by

the judicial council of the appropriate circuit.

The 1977 Senate committee report approved a bill that included provisions for the exercise

of civil consent authority by full-time magistrates only. The report stated:

In approving this bill, the committee has restricted the conduct of civil trials

by consent to those magistrates who serve as full-time magistrates or in

combination positions on a full-time basis. The committee believes that the

appearance of impropriety is too great to allow such duties to be performed
Id. at 7. 165

1978 HOUSE REPORT, supra note 161, at 13.

166

1977 SENATE REPORT, supra note 85, at 8. This statement is part of a

167

broader discussion of part-time magistrates and why the bill restricted the

exercise of civil consent trial authority to full-time magistrates; see id. at 7-8.

1977 House Hearings, supra note 27.

168

1978 HOUSE REPORT, supra note 161, at 9. 169

46

by an individual who also maintains an active law practice. In recognition of

the need to conduct arraignments and trials in misdemeanor cases at remote

locations, the committee has not imposed a similar restriction on the criminal

trial jurisdiction. It is left to the Judicial Conference to exercise its

responsibility under 28 U.S.C. § 632(b) to restrict either the jurisdiction or

the private practice of part-time magistrates to insure that the appearance of

impropriety, as well as the potential for actual conflict-of-interest, is avoided,

while the further development of full-time positions is being accomplished.165

The corresponding House report concurred. "The full-time magistrate requirement will insure

the highest possible quality of civil adjudication and eliminate the possibility that a part-time

magistrate, who may practice law in State courts, might favor counsel in Federal court with whom

the magistrate has State court dealings."166

The Senate report restated the Congressional preference for full-time judicial officers. The

report noted prior statements by Congress expressing its preference for such a system, and recorded

the progress made by the Judicial Conference since implementation of the magistrates system in 1971.

"While the progress achieved to date is commendable, the committee notes that more should be done

to meet the congressional intention, expressed in the original Federal Magistrates Act, and reaffirmed

in 1972, that the magistrates system should be a system of full-time judicial officers, to the extent

feasible."167

(3) House Consideration

In September 1977 the House Judiciary Subcommittee on Courts, Civil Liberties, and the

Administration of Justice, chaired by Representative Robert W. Kastenmeier of Wisconsin, conducted

four days of hearings concurrently on the magistrate legislation and on several proposals to reduce

or eliminate diversity jurisdiction in the federal courts. In November 1977 the Subcommittee in 168

mark-up session approved amendments to S. 1613 requiring that civil trials be conducted only by

full-time magistrates, preventing the assignment of specific categories of cases to magistrates for trial,

providing for freely-given "blind consent" by the parties to the trial of civil cases by magistrates, and

providing for an appeal of right to a judge of the district court.

169
Id. See infra § 16(c). 

170

Id. at 35-42. Representatives Drinan and Kindness stated that "[o]ur quarrel 171

with this measure is that it extends a system which should not be in existence

at all." They argued that legislative proposals to increase the number of Article

III judges, combined with the elimination of diversity jurisdiction, would

obviate the need for this bill. They also questioned the constitutionality of a

"system which authorizes inferior officers to exercise the full judicial power

which the Constitution demands be exercised" only by Article III judges. Id.

at 36. Representative Seiberling also questioned the constitutionality of the bill,

equating authorizing a magistrate to exercise the power of a district judge with

authorizing a White House aide to sign or veto bills. Id. at 40. Representative

Holtzman argued that the legislation would create a "dual system of justice" in

which some litigants are coerced into consenting to trial by a magistrate in a socalled "poor people's court." Id. at 42.

47

In January and February 1978, the House Subcommittee approved several more amendments,

including proposals of the American Civil Liberties Union that detailed procedures and local merit

nominating panels be established for the selection of magistrates and that the requirement be retained

that a person charged with a petty offense consent in writing to trial before a magistrate. Also added

by the Subcommittee were amendments to require court reporters at certain proceedings before

magistrates and to eliminate the provision of the Senate bill that would have excepted petty offense

cases from the operation of the juvenile delinquency statute.170

On February 9, 1978, the Subcommittee approved the legislation. On June 6, 1978, the full

House Judiciary Committee approved the bill by a vote of 23 to 7, with further amendments.

Dissenting views were voiced to the effect that the legislation was both unnecessary and

unconstitutional. The Judiciary Committee, however, rejected these views and stated that it had 171

inquired "with great care into any possible constitutional objections" to the expansion of magistrates'

civil and criminal jurisdiction.

Ten years ago, when Congress passed the Magistrates Act of 1968, there were

three separate lines of authority which indicated that the trial and final

adjudication (including the entry of judgment) of minor offense cases by U.S.

magistrates, with the consent of the parties, was constitutional. The pertinent

case law and commentary at that time indicated that any one of the lines of

authority, standing alone, would be sufficient. The presence of all three

created a solid constitutional foundation for creation of the Federal

magistrates system.

First, the magistrate is an adjunct of the United States District Court,

appointed by the court and subject to the court's direction and control. When

the magistrate tries a case, jurisdiction remains in the district court and is
Id. at 11.

172

48

simply exercised through the medium of the magistrate.

Second, both parties must consent to trial before a magistrate and must

consent to entry of final judgment by the magistrate for the district court.

Third, in all instances an appeal from a magistrate's decision lies in an Article

III court. [footnote omitted].

It is the committee's view that these three pillars are still present today and

that they provide firm support for the proposed legislation which not only

respects them, but reinforces them in several ways. Since no court has found

the present statutory scheme to be constitutionally defective, and several have

spoken approvingly, [footnote omitted] the committee is confident that the

proposed legislation passes constitutional muster.172

The legislation passed the House of Representatives by a vote of 323 to 49 on October 4,

1978. Attached to the bill, however, was a controversial floor amendment that would have eliminated

diversity jurisdiction in the federal courts.

(4) Congressional Conference Consideration

A conference committee was convened during the last week of the 95th Congress, but it could

not reach agreement on the diversity amendment. The conference committee thereupon adjourned

without reaching the merits of the magistrate provisions, and the legislation expired with the

adjournment of the 95th Congress.

12. The Federal Magistrate Act of 1979

a. Congressional Action

(1) Introduction of Legislation

On January 18, 1979, Representative Kastenmeier introduced H.R. 1046 in the 96th Congress.

The bill was identical to the version of the magistrate legislation that had passed the House of

Representatives in 1978, with the exception that the controversial diversity jurisdiction amendment

was not included.

One week later, Senator DeConcini introduced S. 237, a revised version of the legislation that

differed from the bill that had passed the Senate in 1977 in that: (1) it retained the requirement that

a defendant in a petty offense case consent in writing to trial by a magistrate; (2) it narrowed the

proposed expansion of magistrates' jurisdiction under the juvenile delinquency law; and (3) it required
1979 SENATE REPORT, supra note 85, at 1. Accord, H.R. REP. NO. 287, 173

96th Cong., 1st Sess. 1 (1979) [hereinafter 1979 HOUSE REPORT].

1979 HOUSE REPORT, supra note 173, at 5. 174

Id. 175

The Federal Magistrates Act of 1979: Hearing on S. 237 Before the Subcomm.

176

on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary,

96th Cong., 1st Sess. (1979).

This provision was deleted from the legislation by the conference committee of 177

the House and Senate. Instead, the conferees agreed to send a letter to the

Chief Justice requesting that the proper committees of the Judicial Conference

study the issue of having magistrates accept guilty pleas in felony cases with the

consent of the defendant. See S. CONF. REP. NO. 322, 96th Cong., 1 Sess. st

10 (1979) and H.R. CONF. REP. NO. 444, 96th Cong., 1st Sess. 10 (1979),

reprinted in 1979 U.S.C.C.A.N. 1487, 1491 [hereinafter cited as 1979

CONFERENCE REPORT].

The Judicial Conference subsequently decided that magistrates should not be

authorized to accept guilty pleas in felony cases. Report to the Congress by the

49

the Judicial Conference to issue regulations on the selection of magistrates, making explicit provision

for public notice of vacancies in all magistrate positions and the appointment of citizen panels for the

selection of full-time magistrates.

The stated purpose of the proposed legislation was to amend the Federal Magistrates Act "in

order to further clarify and expand the jurisdiction of United States magistrates and improve access

to the Federal courts for the less-advantaged." The House Judiciary Committee noted that "the 173

magistrate system now plays an integral and important role in the Federal judicial system." The 174

proposed legislation, therefore, "is, in effect, a logical extension of the congressional will expressed

in the 1968 Act and the 1976 amendments. It derives its strength from the increasing use and

acceptance of magistrates by judges, practitioners and litigants in the Federal judicial system. And

it recognizes that magistrates have already made a significant contribution to aiding the Federal courts

to meet their delegated responsibilities and that these judicial officers should continue to play a

supportive and flexible role in the Federal judicial system."175

(2) Senate Consideration

S. 237 was considered at hearings before the Senate Subcommittee on Improvements in

Judicial Machinery on March 30, 1979, together with proposed bills affecting both diversity

jurisdiction and arbitration. The Senate Judiciary Committee approved the bill on April 24, 1979, 176

with amendments that: (1) authorized magistrates to accept guilty pleas in felony cases; and (2) 177
Judicial Conference of the U.S., The Federal Magistrates System, 52-53

(December 1981). "Because of the sensitivity and critical nature of the guilty

plea procedure and its close interrelationship with the sentencing function, it is

recommended that no change be made in the current law that reserves the

function to judges. " Id. at 53.

1979 SENATE REPORT, supra note 85, at 5, 13.

178

Id. at 4. 179

Id. See generally § 10, supra.

180

1979 SENATE REPORT, supra note 85, at 7. 181

Id. at 4-5. 182

50

altered the procedure for alternate appeal routes by making appeals to the court of appeals the

preferred procedure, and appeals to a district judge the alternate procedure.178

The Senate Judiciary Committee report explained that S. 237 would expand the authority of

magistrates to actually conduct trials and enter judgments in both civil and criminal cases. The

utilization of magistrates in this fashion would "improve access to the courts for all groups, especially

the less-advantaged," who lack the resources to cope with judicial delay and expense.179

Proposed section 636(c) of the bill explicitly permitted magistrates to issue final decisions in

any civil case upon the consent of the parties. The new section would thus "codify and replace" the

practice in several districts of referring consensual cases to magistrates for trial under sections

636(b)(2) or 636(b)(3) of title 28.180

The Senate version of the bill extended the grant of authority to try civil cases with consent

to include certain part-time magistrate judges. The Senate report stated that "the committee, as a

general rule, has restricted the conduct of civil trials by consent to thosemagistrates who serve as fulltime judicial officers. However, the Committee also recognizes that in rural areas of the country

where only part-time magistrates are available, the decision as to whether that magistrate shall be the

trier of fact should be left to the parties."181

The Committee did not adopt a proposal to designate specific categories of cases for trial

under proposed section 636(c). "No limitation is placed on the type of case which may be referred

to a magistrate under this section." The Committee stated that there was "inadequate experience" at

that point to include certain categories of cases and exclude others.

182

S. 237 did not include an earlier proposal to remove the requirement that a criminal defendant

in a petty offense case consent in writing to trial before a magistrate. The Committee stated:
Id. at 6. 183

Id. at 8. 184

Id. at 9. Actions by the Judicial Conference to pursue this policy are discussed 185

at § 16(j)(2), infra.

Diversity of Citizenship Jurisdiction/Magistrates Reform - 1979: Hearings on 186

H.R. 1046 and H.R. 2202 Before the Subcomm. on Courts, Civil Liberties, and

the Administration of Justice of the House Comm. on the Judiciary, 96th

Cong., 1st Sess. (1979).

51

The requirement that each of these defendants sign a written form to be tried

before a magistrate lengthens the time needed to hear each case and produces

a growing volume of unnecessary paperwork. However, the Committee feels

further empirical evidence of how the magistrates system works is necessary

before it considers removing the written consent requirement. Under existing

law, it does not appear to be required constitutionally that a defendant in a

petty offense case be tried before either an article III district judge or by a

jury.183

The Senate Judiciary Committee reemphasized its preference for full-time judicial officers.

The Committee noted that while the Judicial Conference's progress towards this goal to date was

commendable, more should be done to achieve a system of full-time magistrates to the extent

feasible.184

The committee believes, however, that the Judicial Conference can, and will,

continue to closely monitor the justification for and workloads of those parttime magistrate positions receiving substantial annual salaries, with a view

to the consolidation of such positions into full-time positions. The committee

believes, moreover, that it would be feasible in some instances to authorize

a full-time magistrate to "ride circuit" among several locations for the

performance of a full-range of "additional duties" for the court.

185

The Committee also requested suggestions from the Judicial Conference regarding the feasibility of

the performance of certain magistrate duties by bankruptcy judges. 

The bill passed the Senate on May 2, 1979.

(3) House Consideration

The House Judiciary Subcommittee on Courts, Civil Liberties, and the Administration of

Justice conducted hearings on the legislation on February 28th, March 1st and March 8, 1979. The 186
1979 HOUSE REPORT, supra note 173, at 1. 187

Id. at 10. This language is identical to that quoted in the 1978 report by the 188

House committee; see supra note 166 and accompanying text.

Id. at 19-20. 189

52

House Judiciary Committee approved H.R. 1046 without amendments on June 20, 1979.187

The House bill continued to restrict the authority to try civil consent cases to full-time

magistrates. "The full-time magistrate requirement will insure the highest possible quality of civil

adjudication and eliminate the possibility that a part-time magistrate, who may practice law in State

courts, might favor counsel in Federal court with whom the magistrate has State court dealings."188

The House Judiciary Committee issued certain findings pursuant to its responsibility for

oversight of the federal judicial system:

It is the view of the committee that Federal judicial time is a finite resource

and should be treated as such. In this regard, during the last Congress this

committee responded to increased demands for judge time by voting to create

a substantial number of new Federal judgeships. The committee recognizes,

however, that the Federal judicial branch cannot be expanded indetermining

[sic] without imperiling the high quality of persons attracted to the bench or

without creating an impersonal bureaucracysimilar to that which litigants are

often trying to avoid. Furthermore, expansion of the commodity ... is not a

solution to the crisis of court overload. It merely reacts to the problem and

ultimately may create more reliance on the Federal judicial system,

exacerbating overload in the system.

The Magistrate Act of 1979 is a second patch in the large tapestry of

improving judicial machinery. The proposed legislation addresses itself to

a different exigency than that focused upon by the omnibus judgeship bill.

The committee finds that there is an increasing need for flexibility in the

Federal judicial system, which is called upon to act in a rapidly changing

society. By redefining and by increasing the case-dispositive jurisdiction of

an existing judicial officer -- the U.S. Magistrate -- the legislation provides

the district court with a tool to meet the varying demands on its docket.189

The bill passed the House on June 25, 1979. On June 26, the House vacated passage of H.R. 1046

and passed in lieu thereof S. 237 as amended.
1979 CONFERENCE REPORT, supra note 177, at 1-2. 190

Id. at 8. 191

53

(4) Congressional Conference Consideration

A conference committee of the House and Senate met in August 1979 and reconciled the

various differences between the Senate and House versions of the legislation. The two primary

190

differences centered on the procedures for selecting magistrates and the provisions for appeals from

magistrates' judgments in civil cases.

Both bills included sections on the upgrading of magistrates' qualifications. The House bill

required membership in a bar for a minimum of five years and specified in considerable detail the procedures for selecting magistrates through the use of merit selection panels. The Senate bill merely

specified that there be public notice of vacancies and required the use of merit selection panels for

selecting full-time magistrates. It left the details of the selection process to the Judicial Conference

to prescribe by regulation. The conference committee compromised between the two provisions,

requiring five years' membership in the bar of the state in which the magistrate is to serve, public

notice of vacancies, and merit selection panels for all magistrate appointments and reappointments,

but it left all procedural details to the Judicial Conference.

Both bills provided for alternate appeal routes in civil cases. The House version contained

a presumption in favor of appeal to a district judge, while the Senate version set forth direct appeal

to the court of appeals as the first alternative. The Congressional conference committee opted for the

Senate version. "(T)he conferees felt that litigants who consented to a case disposition by a

magistrate were entitled to the same presumption as to route of appeal that litigants having their case

heard before a district court judge were entitled."191

The conference committee also resolved the dispute over whether part-time magistrates could

exercise consensual civil trial authority by adopting the Senate's position. The conference report

stated:

Lastly, part-time magistrates, pursuant to the consent of the parties (after a

specific written request), may exercise such jurisdiction subject to the

following requirements: the magistrate must meet the bar membership

requirements set forth in the legislation and the chief judge of the district

court must certify that a full-time magistrate is not reasonably available in

accordance with guidelines established by the judicial council of the circuit.

Among others, suggested reasons for unavailability are illness, distance, and

lack of a full-time magistrate. The workload of full-time magistrates, being
Id. at 7. In implementing the civil consent provisions of the 1979 amendments, 192

several courts authorized part-time magistrates to conduct civil trials at

locations where a full-time magistrate was already stationed. The courts based

their authorization upon the belief that the heavy workloads of the full-time

magistrates precluded them from handling civil consent cases, thus rendering

them "not reasonably available." The Magistrates Committee at its June 1990

meeting decided not to adopt model judicial council guidelines, which would

have precluded courts from authorizing part-time magistrates to conduct civil

trials in these situations.

193 Pub. L. No. 96-82, 93 Stat. 643 (1979).

1979 CONFERENCE REPORT, supra note 177, at 7. 194

54

a subjective determination, should not be considered as a major factor.

192

b. Provisions of the 1979 Legislation

The conference committee bill was approved by both houses of the Congress, and it was

signed into law on October 10, 1979. As enacted, the Federal Magistrate Act of 1979 contained

193

the following principal provisions:

(1) Civil Trial Jurisdiction

The legislation authorized a full-time magistrate (and certain part-time magistrates) to try any

civil case in the district court and to enter judgment upon special designation of the district court and

consent of the parties. It specified that the clerk of the district court must notify the parties at the time

a case is filed of their option for trial by a magistrate; that the parties' decision in this regard must be

communicated directly to the clerk; that no judge or magistrate may attempt to persuade or induce a

party into consenting to a reference to a magistrate; and that local rules of court must include

procedures to protect the voluntariness of the parties' consent.

The legislation required the district courts to specially designate individual magistrates to

exercise civil consent authority. The conference committee report emphasized, however, that "[n]o

categorization of types of cases to be tried by magistrates is to be allowed." A part-time magistrate 194

would be permitted to exercise civil consent authority only if he or she met the bar membership

requirements and the chief judge of the district certified that a full-time magistrate was not reasonably

available.

Congress anticipated instances where a party may wish to withdraw consent to trial before a

magistrate. The House report stated:
1979 SENATE REPORT, supra note 85, at 14.

195

55

It is the view of the committee that once the parties have voluntarily,

knowingly, and intelligently consented to a civil trial by magistrate, it should

fall within the broad discretion of the magistrate to determine whether to

permit one or more of the parties to withdraw consent. The committee feels

that it should be difficult to withdraw consent, but stops short of statutorily

requiring that the parties, a [sic] the time of consent, further agree that they

are irrevocably bound by their agreement. In deciding whether consent can

be withdrawn, the magistrate should be careful to insure that it was

voluntarily, knowingly, and intelligently made. He should further examine,

inter alia, what are the reasons for withdrawal, what prejudice may result to

the other party from withdrawal, and what proceedings have occurred since

the consent took place.195

The legislation also provided district judges with discretion to vacate the reference of a civil

case to a magistrate for good cause shown on a judge's own motion or under extraordinary

circumstances shown by any party. The Senate report discussed this provision:

This statement makes clear the court's inherent power to control its docket.

This language is intended to permit in extraordinary circumstances the trial

before a district judge of a matter otherwise before a magistrate. This

removal power is to be exercised only where it is appropriate to have the trial

before an article III judicial officer because of the extraordinary questions of

law at issue and judicial decisionmaking is likely to have wide precedential

importance.

It is not intended that this subsection be used to remove routinely certain

categories of cases. As made clear above, if a magistrate is designated for

trials in any particular type of case, he must be designated for all types of

matters.

Further, while the language is intended to permit removal at any time, it

should not be construed to authorize routine interlocutory appeals on rulings

by magistrates.196

Court opinions discussing both the withdrawal of a party's consent and the vacation of a reference to

magistrate can be found in section 8 of the Inventory of United States Magistrate Judges Duties.

As originally enacted, the Federal Magistrate Act of 1979 allowed an aggrieved party to appeal

from the judgment of a magistrate directly to the appropriate court of appeals, in the same manner as
1979 CONFERENCE REPORT, supra note 177, at 7. 197

In lieu of these exceptions, the legislation provided generally that the court on 198

its own motion or on motion by the government for good cause shown could

order any misdemeanor case tried by a judge, rather than a magistrate.

Federal Youth Corrections Act, 18 U.S.C. §§ 5005-26 [repealed; 199 Pub. L. No.

98-473, 98 Stat. 1837 (1984)]; Juvenile Justice and Delinquency Prevention

Act, 18 U.S.C.A. §§ 5031-42 (West Supp. 1991) [section 5041 was repealed

in 1984]. See infra § 16(c).

56

an appeal from any other judgment of the district court. Alternatively, the parties at the time of

reference of a case to the magistrate could agree to have any appeal taken to a judge of the district

court rather than to the circuit court. This procedure was significantly modified by amendments to

§ 636(c) contained in The Federal Courts Improvement Act of 1996 (see § 21, infra), which

eliminated the option of appeal to a district judge and permitted direct appeal to the court of appeals

only.

The conference committee report specifically noted that the creation of section 636(c) to

permit magistrates to exercise civil case-dispositive authority did not modify the existing additional

duties provision of subsection 636(b)(3). Citing as an example the use of the additional duties

provision to refer requests for enforcement of IRS summonses, the conference committee stated:

"This legislation would not affect that practice."197

 

(2) Criminal Trial Jurisdiction

The legislation expanded the trial jurisdiction of magistrates in criminal cases from "minor

offenses" to all federal misdemeanors. Thus, the $1,000 fine limitation on magistrates' criminal trial

jurisdiction and the enumerated "political" offenses that had been excepted from their jurisdiction

were both eliminated. For the first time magistrates were authorized to preside over jury trials in

198

misdemeanor cases, where appropriate.

The long-standing requirement that each defendant sign a written waiver of the right to trial

before a district judge and consent to trial before a magistrate was retained. The legislation provided

magistrates with limited jurisdiction under the provisions of the Youth Corrections Act and the

Juvenile Justice and Delinquency Prevention Act of 1974.199

(3) Selection of Magistrates

The statute required that all full-time and part-time magistrates: (a) be members of the bar of

the highest court of the state in which they will serve for a period of at least five years; and (b) be

appointed and reappointed in accordance with regulations to be promulgated by the Judicial

Conference which were to include specific provision for public notice of all vacancies and for merit
1979 CONFERENCE REPORT, supra note 177, at 9. 200

Id. The Senate Judiciary Committee expressed concern that "not all appointees 201

have evidenced the same high quality." 1979 SENATE REPORT, supra note

85 at 9. Including in the legislation certain minimum standards for appointment

was designed to "encourage" the Judicial Conference to establish detailed

qualifications standards and selection procedures. Id. at 9-10.

57

selection panels to assist the judges in selecting and reappointing all magistrates. The law also

directed the panels to give due consideration to all qualified candidates for magistrate positions,

including women and members of minority groups.200

Any magistrate appointed prior to the promulgation of the selection regulations by the Judicial

Conference was authorized to exercise the new civil trial jurisdiction only after designation by the

district court and either: (a) reappointment under such regulations; or (b) a certification of

qualification by the judicial council of the pertinent circuit to exercise such jurisdiction. The

conference committee noted that the success of the 1979 amendments "will be determined by the

magistrates who implement it. It is imperative, therefore, that they be qualified to meet their assigned

functions."201

(4) Miscellaneous Provisions

The legislation amended 28 U.S.C. § 1915(b) to authorize payment for transcripts and certain

costs of indigents who appeal from a magistrate to a district court on the same basis that such

financial assistance is provided to indigents who appeal from a district court to a court of appeals.

The statute authorized the Judicial Conference to designate magistrates to serve in two or more

geographically adjoining districts, and it allowed a magistrate to "hold over" in office for up to 60

days beyond the expiration of a term upon a majority vote of the district court and the circuit council.

The legislation gave the Judicial Conference authority to provide legal assistant positions for

magistrates, and it required the Director of the Administrative Office to include additional

information on magistrates in his annual reports to the Congress. Finally, the legislation required the

Judicial Conference to conduct a study of the effectiveness of the 1979 amendments and the future

of the federal magistrates system, to be made available to the Congress within two years.

13. Implementation of the 1979 Legislation

In February 1980 the Magistrates Committee of the Judicial Conference distributed guidelines

and model rules of court to assist the district courts in implementing the various provisions of the

1979 legislation. The district courts generally amended their local rules to accommodate the changes

made by the 1979 statute, and by the end of 1981 approximately 80 percent of the full-time

magistrates nationally were eligible to try civil cases under 28 U.S.C. § 636(c).
The pamphlet now entitled The Selection, Appointment, and Reappointment of 202

United States Magistrate Judges, also contains the Judicial Conference's

selection regulations, as amended. Copies are available from the Magistrate

Judges Division.

203 445 U.S. 975 (1980).

58

The Judicial Conference at its March 1980 meeting promulgated regulations for the selection,

appointment, and reappointment of magistrates. They have been in effect since April 5, 1980 and

have been amended several times. In June 1981 the Administrative Office distributed to the courts

a pamphlet on the selection and appointment of magistrates to assist the members of merit selection

panels in performing their duties.202

The Supreme Court approved new rules for the trial of misdemeanor cases before United

States Magistrates, effective June 1, 1980, and in mid-1981 the Judicial Conference's Advisory 203

Committees on Civil Rules and on Criminal Rules approved draft amendments to Federal Rules of

Civil Procedure 6, 16, 53, and 72-76 and Federal Rules of Criminal Procedure 1, 5, 9, and 54(b)(4)

to incorporate the provisions of the 1979 legislation. The proposed changes were circulated for

comment to the bench and bar. The amendments to the Federal Rules of Criminal Procedure became

effective on August 1, 1982, while the amendments to the Federal Rules of Civil Procedure became

effective on August 1, 1983.

14. Judicial Conference Report on the Federal Magistrates System

Section 9 of the Federal Magistrate Act of 1979 required the Judicial Conference to undertake

a study concerning the future of the magistrates system and file a report with the Congress within two

years. The precise scope of the study was left to the chairmen of the Judiciary Committees of each

house of the Congress.

The study was conducted by the Magistrates Division of the Administrative Office under the

supervision of the Magistrates Committee of the Judicial Conference and focused on: (1) the impact

of the 1979 legislation; and (2) the future direction of the magistrates system. As part of the study

a survey was conducted of all chief judges of the effectiveness of the 1979 statute. Moreover, the

views of the National Council of United States Magistrates were solicited, and the study incorporated

the results of a Federal Bar Association survey on the magistrates system.

The Judicial Conference approved the report at its September 1981 meeting, and the document

was presented to the Congress in December 1981. The Conference concluded generally that: (1) the

federal magistrates system has been of substantial assistance to the courts; (2) the jurisdiction of

magistrates is appropriate in its current, amended form; (3) the organization of the magistrates system

and the nature of the office of United States magistrate are appropriately constituted at present; (4)

the 1979 amendments have been well received and are beneficial to the courts and to litigants; and

(5) although the 1979 legislation is sound, some minor adjustments are desirable in the language of
The Conference suggested, inter alia: (1) that the language of 204 28 U.S.C. §

636(c)(2) be amended to give the clerk of the district court more flexibility

regarding the time and manner of notifying civil litigants as to the civil trial

jurisdiction of magistrates; (2) that § 631(b) be amended to require that a

magistrate be a member of a bar of any state for a period of at least five years;

(3) that the limitation on a magistrate's authority to impose probation in Youth

Corrections Act cases be amended; and (4) that disparities in sentencing

authority between magistrates and judges in misdemeanor cases be reviewed.

See generally § 16(j)(1), infra.

205

See generally § 17(a)(2), infra.

206

59

the statute.204

The Conference concluded that the magistrates system should remain an integral part of the

United States district courts and should not be reconstituted as a separate tier or court. The report

emphasized that flexibility in the use of magistrates by the district courts is one of the great benefits

of the magistrates system and must be retained in the statute. The Conference stated that the

jurisdiction of United States magistrates should remain "open-ended" and coextensive with that of

the district courts. It emphasized that the duties that magistrates perform should continue to be

determined by delegation from the district courts, and that magistrates should not be given piecemeal

or "original" jurisdiction over specific categories of cases.205

The Conference stated that magistrates should not be authorized to accept guilty pleas for

judges in felony cases. It suggested, however, that the Congress consider creating more

misdemeanors orfashioning a downgrading provision permitting magistrates to dispose of additional

criminal cases. The Conference requested that the Congress amend the Federal Magistrates Act to

provide that the consent of the defendant in a petty offense case be made on the record only, without

the requirement that it be made in writing. It also suggested that the Congress might wish to 206

consider whether there is a need to extend limited contempt powers to magistrates.

The Conference specifically addressed the role of part-time magistrates in the magistrates

system:

The Federal Magistrates Act authorizes the district courts to assign a full

range of duties to part-time magistrates. [The 1979 amendments, though,

limit the role of part-time magistrates in the trial of civil cases to those

instances where there is no full-time magistrate reasonably available.]

Only a few part-time magistrates are regularly delegated a full range of

assignments by the judges in civil and criminal cases. Because of the Judicial

Conference's conflict-of-interest rules, the limited amount of time they have
Report to the Congress by the Judicial Conference of the U.S., The Federal 207

Magistrates System, 59 (December 1981).

60

available from their law practices, the unavailability of supporting staff, and

the small amount of work generally available at outlying locations, it is

unlikely that part-time magistrates will ever be used extensively by the

district courts to assist in handling the judges' cases. 

Nonetheless, the Federal Magistrates Act provides flexibility to use part-time

magistrates to meet special caseload problems and to deal with emergencies

that may arise. For example, a part-time magistrate may be pressed into

service by the court to perform a wider range of duties during the illness or

absence of a full-time magistrate or as a result of a heavy caseload surge or

growing backlog in the district court. The flexibility that the current law

provides the district courts to use part-time magistrates is desirable and

should be retained.

The Conference noted the practical difficulties that could arise from the performance of judicial duties

by a practicing attorney. The report stated that "theConference intends to continue implementing the

congressional policy of authorizing full-time magistrate positions to handle the courts' needs wherever

feasible."207

The report concluded that the salaries and retirement benefits of magistrates need to be

improved substantially in order to attract and retain highly-qualified individuals as magistrates. The

Conference felt that the title "United States magistrate" was an appropriate designation for the office

and that no change of title would be warranted. Finally, the Conference noted that the staffing

arrangements and support services provided to magistrates appeared to be adequate.

15. Qualifications Amendments of 1982, 1986 and 1989

a. 1982 Amendments

Among the minor adjustments recommended by the Judicial Conference in its 1981 report was

a modification of the qualifications requirements for appointment as a United States magistrate. The

Federal Magistrate Act of 1979 required not only that each individual appointed as a magistrate be

a current member of the bar of the highest court of the state of appointment, but also that each

appointee have been a bar member of the state of appointment for at least five years.

The five-year experience requirement was added in the 1979 legislation to help ensure that

only well-qualified persons would be appointed as magistrates. The Judicial Conference, while

supporting the concept of an experience requirement, pointed out that limiting such experience only

to the state in which the prospective magistrate would serve was probably more restrictive than

necessary or intended:
Id. at 39 (emphasis in the original). 208

REGULATIONS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 209

ESTABLISHING STANDARDS AND PROCEDURES FOR THE APPOINTMENT OF

UNITED STATES MAGISTRATES, Sec. 1.01(a) (1982).

210 Pub. L. No. 99-651, Title II, sections 201-3, , 100 Stat. 3642 (November 14,

1986). 

61

Capable individuals have applied for magistrate positions who are in fact

members of the local state bar and have more than five years' experience as

attorneys, but have not been members of the bar of the highest court of the

particular state where they would serve as magistrate for a period of five

years. Therefore, the language of the 1979 amendments should be modified

to separate the two requirements of local bar membership and five years' bar

membership. It should be sufficient simply to require that a magistrate be a

member in good standing in the bar of the highest court of the state of

appointment and a member of the bar of the highest court of any state for a

period of at least five years.

208

Legislation implementing the Conference's recommendation was introduced in the House of

Representatives (H.R. 6544 and H.R. 6570). A companion measure, S. 2706, was introduced in the

Senate on June 30th and passed by voice vote on the same day. On July 23d, the House considered

and passed the Senate bill by unanimous consent.

The legislation retained the requirement of current membership in the bar of the state of

appointment for an individual selected to serve as a magistrate. However, the experience requirement

was broadened to permit membership in the bar of any state to qualify as part of the necessary

five-years' bar membership.

The bill was enacted as Public Law No. 97-230, 96 Stat. 255, on August 6, 1982. On the same

day, by action of its Executive Committee, the Judicial Conference effected a change in the Selection

Regulations for U.S. Magistrates to implement the new law.209

b. 1986 Amendments

(1) Ad Hoc Recall and Extended Service Recall

The Criminal Justice Act Revision of 1986 amended the Federal Magistrates Act in several

ways. Primarily, however, it added a new subparagraph (h) to 210 28 U.S.C. § 636 authorizing a

judicial council, upon the consent of the chief judge of the district court, to recall a retired magistrate.

The recall provision was enacted to encourage retired judicial officers to continue to perform

important and necessary services for the courts.
Id., section 201(b)(1), 211 100 Stat. 3642.

62

At its March 1987 session, the Judicial Conference promulgated regulations to govern the

recall of retired magistrates in accordance with section 636(h). The regulations, Regulations of the

Judicial Conference of the United States Establishing Standards and Procedures for the Recall of

United States Magistrate Judges, were patterned after existing regulations for the recall of retired

bankruptcy judges, and permitted the recall of a retired magistrate for renewable periods not to exceed

six months each. At its September 1987 session, the Judicial Conference amended the regulations

to extend the period of recall from six months to one year. In March 1996, the regulations were

amended to extend the maximum period to one year and one day, and to provide that a recalled judge

may be compensated on a full-time basis or a “when-actually-employed” basis. Subsequent

amendments were made on a number of occasions.

In addition, from the time ofthe statute’s enactment, consideration has been given to utilizing

§ 636(h) as a basis for recalling magistrate judges for terms of service longer than one year. At its

June 1991 meeting, the Magistrate Judges Committee established the Subcommittee on Recall

Service to study development of a system to recall magistrate judges for more than one year at a time.

The subcommittee submitted a draft report at the December 1991 meeting of the Magistrate Judges

Committee. The Committee, however, stayed consideration of the proposed regulations at that

meeting because in November the Executive Committee and two judicial councils had expressed

reservations regarding the establishment of a “senior status” system for non-Article III judges. The

matter was deferred for one year.

Following the Magistrate Judges Committee meeting, the Bankruptcy Committee clarified the

concerns expressed and recommended regulations for extended service recall of bankruptcy judges.

At its March 1992 session, the Judicial Conference adopted the bankruptcy recall regulations.

At its December 1992 meeting, the Magistrate Judges Committee recommended

implementation of regulations for extended service recall of magistrate judges pursuant to 28 U.S.C.

§ 636(h) that were similar, but not identical, to the bankruptcy regulations. At its March 1993

session, the Judicial Conference adopted these regulations under the full title, Regulations of the

Judicial Conference of the United States Governing the Extended Service Recall of Retired United

States Magistrate Judges. These regulations have since been amended on a number of occasions.

(2) Five-year Recall

The Criminal Justice Act Revision also added a new section 375 to title 28, establishing a

separate, additional provision for the recall of retired bankruptcy judges and magistrates for five-year

periods. Originally, the five-year recall provisions had been linked to a retirement proposal that 211

was not enacted. The Bankruptcy and Magistrates Committees studied the new section and

considered various proposals for the promulgation of regulations by the Conference. 
Id., section 201(a)(1), 212 100 Stat. 3642.

Dire Emergency Supplemental Appropriations and Transfers, Urgent 213

Supplementals, and Correcting Enrollment Errors Act, Pub. L. No. 101-45,

Title II, ch. 1, sec. 104, 103 Stat. 97, 122 (June 30, 1989).

63

At its December 1986 meeting, the Magistrates Committee discussed the five-year recall

provisions of section 375. Several members of the Committee expressed concern about whether the

five-year recall provisions were needed or desirable in view of the temporary recall provisions set

forth in section 636(h). Both committees also expressed concern with the certification and

decertification provisions of section 375. An ad hoc subcommittee was created and met with

members of the Bankruptcy Committee to discuss implementation of the five-year recall provisions.

The consensus reached at that meeting was to delay implementation pending further study of the

actual need and cost of the program. The subcommittee's decision to delay implementation was

approved by the full Magistrates Committee in June 1987. 

(3) Service Beyond Age 70

The 1986 amendments also changed section 631(d) concerning the continuing service of

magistrates who have attained the age of 70. Effective January 1, 1987, section 631(d) provided 212

that magistrates may continue to serve beyond age 70 by a majority rather than unanimous vote of the

district judges. The judges vote not only when the magistrate attains age 70, but also on each

subsequent anniversary of the magistrate's date of birth.

c. 1989 Amendment

In 1989 the qualifications provisions of subsection 631(b) were further simplified. The

statutory requirement that the appointee's bar membership be in the state of prospective service was

removed entirely by amending 28 U.S.C.§ 631(b)(1). 

213

16. Utilization of Magistrates and Enhancement of the Office

a. General Accounting Office Report

In July 1983, the Comptroller General submitted a report to Congress entitled "Potential

Benefits of Federal Magistrates System Can Be Better Realized." The report, which contained

favorable findings concerning the efficacy of the magistrates system, concluded that the system had

become an important and integral part of the Federal judicial system and has helped to reduce the

workload on federal judges. The thrust of the report was to encourage greater utilization of magistrate

resources by the district courts.

The report specifically recommended that the Judicial Conference of the United States: (1)

issue a policy statement to encourage all district courts to develop a comprehensive plan within their
Report to the Congress by the Comptroller General, Potential Benefits of 214

Federal Magistrates System Can Be Better Realized, iv-v, 43 (1983) (B201911).

215 Pub. L. No. 98-473, Title II, ch. 1, 98 Stat. 1837 (Oct. 12, 1984).

Id., section 204, 216 98 Stat. 1837.

64

districts for using magistrates more effectively and efficiently; (2) disseminate to all districts on a

more formal basis the criteria for approving requests for new magistrate positions; and (3) provide

additional guidance to the district courts in implementing the civil trial provision of the Federal

Magistrates Act. In addition, the General Accounting Office recommended to Congress that 28

U.S.C. § 636(c)(2) be amended to make clear that the designation of a magistrate to conduct civil

trials with the consent of the parties does not preclude a district judge from exercising jurisdiction

over any case, even though the parties had consented to disposition of the matter by a magistrate.214

The Judicial Conference responded to the GAO's report at its meeting in March 1984. The

Conference endorsed the actions being taken or proposed by the Administrative Office and the

Magistrates Committee to encourage the further use of magistrates by the courts. At its December

1983 meeting, the Committee: (1) agreed to recommend formally to the Federal Judicial Center that

future seminars and orientation programs include information on the general jurisdiction of

magistrates and on the effective utilization of magistrates; (2) declined to endorse the GAO proposal

to encourage courts to develop district-wide plans for the use of magistrates; (3) approved the

dissemination to the courts of the criteria used in evaluating and approving new full-time magistrate

positions; and (4) declined to revise the "Guidelines to Implement the 1979 Amendments to the

Federal Magistrates Act" to define the limits imposed upon a federal district judge or a magistrate in

informing litigants of their option to consent to a trial before a magistrate in a civil case. 

The Conference also expressed a preference for the language in the proposed amendment of

28 U.S.C. § 636(c)(2) submitted to Congress in the Conference's 1981 report on the magistrates

system, rather than that in the amendment proposed in the GAO report. In 1990, the Congress

adopted language similar to that preferred by the Conference. See § 18(b)(2), infra.

b. Bail Reform Act of 1984

The Bail Reform Act, among other things, authorized judicial officers generally, including

magistrates, to detain criminal defendants prior to trial. Section 204 of the Act amended 215 18 U.S.C.

§§ 3041 and 3042 to allow magistrates to make detention or conditional release determinations under

18 U.S.C. §§ 3141-3156.

216

The Act made a technical and conforming amendment to 28 U.S.C. § 636(a)(2) by striking

out "impose conditions of release under section 3146 of title 18" and inserting in lieu thereof "issue
Id., section 208, 217 98 Stat. 1837.

Id. at 10.

218

219 Pub. L. No. 98-473, sec. 218(a)(8), 98 Stat. 1837.

Id., sec. 223(j), 

220 98 Stat. 1837.

65

orders pursuant to section 3142 of title 18 concerning release or detention of persons pending trial."217

Conforming amendments were also made to rules 5(c), 15(a) and 40(f) of the Federal Rules of

Criminal Procedure. 

c. Juvenile Proceedings

The Juvenile Justice and Delinquency Prevention Act of 1974, 18 U.S.C. §§ 5031-5042,

established special procedures to be used when processing federal crimes committed by persons under

age 18. The Federal Youth Corrections Act of 1974, 18 U.S.C. §§ 5005-5026, was enacted to provide

indeterminate sentencing of youth offenders under age 22, and in certain instances, of young adult

offenders ages 22 to 26.

The authority of magistrates to try misdemeanor cases involving youth offenders and juveniles

was clarified by the Federal Magistrate Act of 1979. The Act added subsections (g) and (h) to 18

U.S.C. § 3401. Subsection (g) delineated a magistrate's authority in misdemeanor and petty offense

cases involving youth offenders. Subsection (h) specified that a magistrate had authority to dispose

of petty offense cases involving juveniles, but prohibited magistrates from imposing sentences of

incarceration in those cases. 

The Senate version of the Federal Magistrate Act of 1979 would have provided magistrates

with the authority to try misdemeanor cases, including petty offense cases, involving juveniles. The

conference report for the 1979 Act stated: "The House conferees rejected the Senate provisions and

agreed to the following compromise: Magistrates are authorized to try juveniles with their consent

and in petty offense cases only." 

218

The Comprehensive Crime Control Act of 1984 repealed the Federal Youth Corrections 219

Act. At the same time, the Crime Control Act repealed 18 U.S.C. § 3401(g), which delineated the

authority of magistrates under the Youth Corrections Act, and redesignated subsection (h) as (g).220

At its March 1995 session, the Judicial Conference approved a recommendation of the

Magistrate Judges Committee to endorse an amendment to 18 U.S.C. § 3401(g) to provide magistrate

judges with authority over juvenile Class A misdemeanor cases (misdemeanors above the level of

petty offense), and to provide magistrate judges with authority to sentence juvenile defendants to
JCUS-MAR 95, p. 24.

221

See generally, § 21(b), infra.

222

Report of the Judicial Conference Committee on the Administration of the 223

Magistrate Judges System, 16-17 (September 1992).

Supplement to the Long-Range Plan for the Magistrate Judges System, 4-6 224

(June 1994).

Id. at 5. 225

66

terms of imprisonment in petty offense and other misdemeanor cases.221

The Federal Courts Improvement Act of 1996 amended 18 U.S.C. § 3401(g) by removing the

requirement of consent of a juvenile defendant to magistrate judge authority in most petty offenses

as specified in the Act. Further requirements regarding consent of a juvenile defendant to

222

magistrate judge authority were removed by the Federal Courts Improvement Act of 2000, which also

gave magistrate judges authority to sentence juvenile defendants to terms of imprisonment in

misdemeanor cases. For more information on the changes made by this law, see § 22(b), infra.

d. Proceedings In Felony Cases

In June 1992, the Magistrate Judges Committee adopted a resolution stating that judicial

duties in certain “critical stages of felony cases, including accepting guilty pleas, conducting

sentencing proceedings, and presiding over the trial of a felony case” were within the fundamental

authority of Article IIIjudges and, therefore, were not appropriate for delegation to magistrate judges,

regardless of the parties’ consent. The Committee did not seek Judicial Conference endorsement 223

of its position at that time.

In 1994, however, during long-range planning sessions, the Committee significantly changed

its position. In a 1994 Supplement to its Long-Range Plan for the Magistrate Judges System, the

Committee observed that “[t]he projected growth of the criminal caseload of the federal courts makes

the delegation of expanded consensual felony authority to magistrate judges an increasingly

acceptable alternative for courts attempting to manage growing felony and civil dockets.”224

A majority of the Committee believed that the litigants’ consent to magistrate judge authority

satisfied constitutional concerns. A substantial minority of Committee members did not agree with

this view. Therefore, the Committee agreed that “it would be prudent to proceed cautiously,

expanding the involvement ofmagistrate judges in felony matters on an experimental basis.” Thus,

225

the Committee recommended that pilot programs be established in selected district courts under

which magistrate judges would be authorized to accept guilty pleas and impose sentences in felony
Id. at 4. 226

Id. at 6. 227

All circuits which have dealt with this issue have held that plea colloquies under 228

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) with the defendants’

consent. See e.g., United States v. Benton, 523 F.3d 424 (4th Cir. 2008);

United States v. Vega-Martinez, 425 F.3d 15 (1st Cir. 2005); United States

v. Woodard, 387 F.3d 1329 (11 Cir. 2004) th ; United States v. Reyna-Tapia,

328 F.3d 1114 (9th Cir. 2003) (en banc); United States v. Torres, 258 F.3d

791 (8th Cir. 2001); United States v. Dees, 125 F.3d 261 (5th Cir. 1997), cert.

denied, 522 U.S. 1152 (1998); United States v. Ciapponi, 77 F.3d 1247 (10th

Cir.) cert. denied, 517 U.S.1215 (1996); United States v. Williams, 23 F.3d

629 (2d Cir. 1994).

67

cases with the consent of the parties and under the supervision and control of district judges. It also 226

recommended that if these programs were found to be constitutional and beneficial, an additional

experimental pilot program be established to permit magistrate judges to try felony cases with

consent. The Committee reported these recommendations to the September 1994 session of the 227

Judicial Conference as information items only, thus no position was taken on them by the full

Conference, and although recommended in the Long Range Plan,sentencing and trial pilot programs

have never been implemented. In many districts, magistrate judges are authorized to accept felony

guilty pleas.228

e. Bankruptcy Amendments and Federal Judgeship Act of 1984

The Bankruptcy Amendments and Federal Judgeship Act [BAFJA] was passed in response

to the Supreme Court's decision in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458

U.S. 50 (1982), which invalidated the grant of judicial authority to bankruptcy judges made under the

Bankruptcy Reform Act of 1978. Many of the new jurisdictional provisions of the Bankruptcy Code,

codified at 28 U.S.C. § 157, resembled the jurisdictional provisions of the Federal Magistrates Act,

28 U.S.C. § 636.

During the interim period between Marathon and the effective date of BAFJA procedures

were instituted to allow courts to utilize magistrates to hear and determine "core" bankruptcy

proceedings. After the enactment of BAFJA, however, the need to use magistrates in bankruptcy

proceedings was eliminated. The Magistrates Committee therefore determined at its meeting in

December 1984 that the routine reference of core bankruptcy proceedings should not be encouraged

and that the Committee should not consider bankruptcy matters in its deliberations on the need for

additional magistrate resources.
229 Pub. L. No. 100-659, 102 Stat. 3910 (1988).

230 Pub. L. No. 106-113, 113 Stat. 1501 (1999).

68

f. Retirement and Survivors' Annuities for Bankruptcy Judges and Magistrates Act

of 1988

The Retirement and Survivors' Annuities for Bankruptcy Judges and Magistrates Act was

enacted on November 15, 1988. Many of its provisions are codified at 229 28 U.S.C. §§ 376 and 377.

The Act authorized the Director of the Administrative Office to regulate and administer the new

retirement system under the supervision of the Judicial Conference. 

The retirement provisions of the Act added a new section 377 to title 28 of the United States

Code and entitled any full-time magistrate who retires after attaining the age of 65 years and serving

at least 14 years to receive an annuity equal to the salary being received at the time the magistrate left

office. The Act provides for a partial annuity for magistrates retiring after at least eight years of fulltime service.

The Act also affected the Judicial Survivors' Annuities System [JSAS]. The JSAS plan,

originally enacted in 1956 and amended in 1976 and 1986, provides an annuity to the surviving

spouse and any surviving dependents of Article III judges. The Act amended 28 U.S.C. § 376 to

extend eligibility to participate in JSAS to bankruptcy judges and magistrates. 

g. Federal Employees’ Group Life Insurance (FEGLI) Benefits Changes for

Magistrate Judges

Before 1998, Article IIIjudges had the exclusive right to carry full Federal Employees’ Group

Life Insurance (FEGLI) coverage into retirement. In addition, then and now, Article III judges are

entitled to carry such coverage at no increased cost over the employee rate paid by active employees.

However, in 1998, Congress enacted legislation that expanded the right to carry full FEGLI coverage

into retirement to all federal employees, including magistrate judges and bankruptcy judges, although,

unlike Article III judges, these employees must pay the additional premiums over what they paid as

active employees. As a result of this statutory change widening the covered group of retirees, the

Office of Personnel Management (OPM) imposed rate changes in FEGLI premiums that would

significantly increase the cost for all judges of maintaining the insurance and, for judges aged 65 and

older, made continued coverage prohibitively expensive. 

To minimize the impact of this change for Article III judges, Congress passed legislation

known as the “FEGLI fix” in November 1999, which authorized the Director, on direction of the 230

Judicial Conference, to pay “on behalf of Justices and judges of the United States appointed to hold

office during good behavior, aged 65 or over, any increases in the cost of [FEGLI] imposed after April
See 231 28 U.S.C. § 604(a)(5).

JCUS-SEP 00, pp. 54-55. 232

The three FEGLI benefits sought by the Court of Federal Claims judges were: 233

(1) the right of retired judges to FEGLI Basic Life insurance at premiums that

are capped at active government employee rates; (2) the elimination of the fiveyear enrollment requirement for continuing full FEGLI coverage into

retirement; and (3) the payment by the Director of the AO of the cost increases

for FEGLI Option B coverage imposed after April 24, 1999 for judges aged 65

and older. The last benefit being known as the “ FEGLI” fix.

The Magistrate Judges Committee approved the following recommendation: 234

“ that the Judicial Branch Committee recommend that the Judicial Conference

support legislation to equalize life and health insurance benefits for non-Article

III judges provided that the total benefits available to these judges do not

exceed those available to Article III judges.” 

The Bankruptcy Committee endorsed a slightly different recommendation: that

the Judicial Branch Committee recommend that the Judicial Conference support

legislation to provide access to life and health insurance benefits for non-Article

III judges according to the same standards as Article III judges.

JCUS-SEP 00, pp. 39-40. 235

69

24, 1999, including any expenses generated by such payments . . .” Shortly thereafter, in 2000, the 231

Judicial Conference authorized the Director to pay the increased FEGLI premiums for all active

Article III judges aged 65 and older, senior judges and retired Article III judges, effectively capping

their personal life insurance costs after age 65.232

While the legislation for the “FEGLI fix” for Article III judges was still pending, the Court

of Federal Claims was instrumental in adding a provision to the federal courts improvement bill in

the 106 Congress that was intended to treat Court of Federal Claims judges the same as life-tenured th

judges for purposes of FEGLI, including extension of the “FEGLI fix” to them. Because Congress 233

was considering also extending the “FEGLI fix” to magistrate judges and bankruptcy judges, the

Magistrate Judges Committee and the Bankruptcy Committee, at their respective meetings in

December 1999 and January 2000, endorsed supporting legislation to equalize life insurance benefits

for all federal judges.”234

Around the same time, however, the Judicial Branch Committee recommended to the Judicial

Conference that it oppose the extension of the “FEGLI fix” to Court of Federal Claims judges. The

Judicial Conference agreed.235
Id. at 40.

236

JCUS-MAR 05, pp. 21-22. 237

70

Becoming aware of proposed legislation that would include magistrate judges and bankruptcy

judges within the “FEGLI fix,” the Executive Committee, acting on behalf of the Conference,

requested that Congress defer action on extending the “FEGLI fix” to magistrate judges and

bankruptcy judges until a complete review and discussion could be had within the judicial branch.

In so doing, the Executive Committee noted that the “FEGLI fix” was passed because it was “critical

in maintaining the status quo for Article III judges, who were in peril of losing a long-time

benefit—applicable only to life-tenured federal judges—upon which many of them had come to rely

as the keystone of their financial and estate planning.” However, despite the opposition of the 236

Judicial Conference, Congress extended the “FEGLI fix” to Court of Federal Claims judges as part

of the Federal Courts Improvement Act of 2000, Pub. L. No. 106-518.

A few years later, in May 2004, the Federal Courts Improvement Act of 2004 (S. 2396) was

introduced containing a provision that extended the “FEGLI fix” to magistrate judges, bankruptcy

judges, and territorial court judges. The bill was referred to the Senate Judiciary Committee where

no further action was taken on it. 

Approximately a year later, at its March 2005 session, the Judicial Conference adopted a

recommendation of the Committee on the Judicial Branch to endorse extending the FEGLI fix to

bankruptcy judges and magistrate judges who are in active status or are retired under the Judicial

Retirement System, exclusive of those judges who elect to practice law after retirement. Shortly, 237

thereafter, on June 2, 2005, the judiciary transmitted proposed court security legislation to the 109th

Congress that included a FEGLI fix provision for non-Article III judges. 

In the closing days of the 109 Congress, the Senate passed a House version of court security th

legislation (H.R. 1751) with a substituting amendment that included a version of the FEGLI fix that

differed in language and effect from the FEGLI benefits legislation for magistrate judges, bankruptcy

judges, and territorial court judges that was contained in the 2004 Senate bill, S. 1968. The different

version would have extended to these judges the right to payments of increases in Option B premiums

for judges aged 65 and older, but did not include the right to Basic life insurance premiums that are

capped at active government employee rates or elimination of the five-year rule, the two other FEGLI

benefits sought by non-Article III judges. The House, however, failed to pass H.R. 1751 as amended

by the Senate, before adjournment of the 109 Congress. th

At its December 2006 meeting, the Magistrate Judges Committee reaffirmed its

recommendation to the Judicial Branch Committee to seek legislation to extend the FEGLI fix to

magistrate judges and bankruptcy judges. The Judicial Branch Committee agreed to continue to seek

this legislation in the 110 Congress, and the Executive Committee of the Judicial Conference th

“supported” the various positions of the Committees at its February 2007 meeting. The Federal

Magistrate Judges Association, after consulting with the AO, initiated efforts in the Senate to resolve
238 Pub. L. No. 111-8, 123 Stat. 524 (2009).

239 Pub. L. No. 100-690, 102 Stat. 4181 (1988).

Id., Title VII, section 7322,

240 102 Stat. 4181 (1988).

71

any issues concerning the FEGLI benefits legislation for non-Article III judges and to reinstate the

proposed FEGLI legislation for these judges as it previously existed in S. 1968 in the 109 Congress. th

In the 110 Congress, the Senate and House court security bills (S. 378 and H.R. 660) as th

introduced, both contained the scaled down version of the FEGLIfix, as described above, carried over

from the 109 Congress. However, when the Senate passed S. 378 on April 19, 2007, it adopted an th

amendment offered by the bill’s sponsor and Chairman of the Senate Judiciary Committee, Sen.

Patrick Leahy (D-VT), that replaced the changed FEGLI fix with new language that, although

different from the language used in S. 1968, would effectively restore all three FEGLI benefits (see

Footnote 232, supra), including the FEGLI fix, sought by magistrate judges, bankruptcy judges, and

territorial court judges. However, the House-passed bill, H.R. 660, still contained the version of the

FEGLI fix carried over from the 109 Congress. House staff assured the Administrative Office that th

the House would agree to the Senate language on the FEGLI fix in the final bill to be approved by

both houses. 

In December 2007, both Houses of Congress passed the legislation containing the FEGLI fix

and the two other FEGLI benefits sought by magistrate judges. However, the legislation did not

extend the fix to bankruptcy judges and territoritial court judges due to pay-as-you-go budget rules.

The Court Security Improvement Act of 2007 was signed by the President into law on January 7,

2008. On March 11, 2009, the President signed the Omnibus Appropriations Act, 2009, a nine-bill 238

consolidated spending measure that included not only the fiscal year 2009 funding for the judiciary,

but also the FEGLI fix for bankruptcy judges and territorial court judges.

h. Anti-Drug Abuse Act of 1988

On November 18, 1988, the President signed the Anti-Drug Abuse Act of 1988. The Act

239

represented a compromise between several anti-drug measures introduced in both Houses.

The Act made certain clarifying and conforming amendments regarding petty offense

jurisdiction. The definition of petty offense in 18 U.S.C. § 19 was altered to raise the limit on a fine

imposed for a petty offense to not more than $5,000 for an individual and $10,000 for an organization.

Conforming amendments were incorporated into rule 9 of the Rules of Procedure for the Trial of

Misdemeanors before United States Magistrates and rule 54 of the Federal Rules of Criminal

Procedure.

The Act also added a fourth subsection under 28 U.S.C. § 636(a) specifically authorizing a

magistrate to enter a sentence for a misdemeanor or infraction "with the consent of the parties."240
241 Pub. L. No. 100-702, Title IV, sect. 404(b)(1), Title X, sect. 1014, 102 Stat.

4642, 4651, 4669 (1988).

242 Pub. L. No. 101-194, 103 Stat. 1716 (1989).

72

The new subsection was apparently intended to make clear that magistrates have authority to enter

sentences for infractions, a new category of offenses created by the Sentencing Reform Act of 1987.

i. Judicial Improvements and Access to Justice Act of 1988

The Judicial Improvements and Access to Justice Act of 1988 was enacted as an omnibus

judicial "housekeeping" measure on November 19, 1988. The Act made two non-jurisdictional

changes to 28 U.S.C. § 636.241

The housekeeping measure removed certain restrictions on the method of recording court

proceedings and allowed magistrates to use their discretion in determining whether to utilize

electronic sound recording equipment, a court reporter, or other means of recording proceedings in

a civil consent case. Previously, 28 U.S.C. § 636(c)(7) had set forth specific instances in which a

particular method of reporting (or none at all) was required. The Act amended this section to provide

that such matters shall be left to the magistrate's discretion, "subject to guidelines of the Judicial

Conference." Guidelines are published in Volume VI, Chapter XII, of the Guide to Judiciary Policies

and Procedures.

In addition, 28 U.S.C. § 636(d) was amended to conform to the Rules Enabling Act

amendments of Title IV of the housekeeping measure. That title revised sections 2072-74 of title 28,

providing the Supreme Court with the power to prescribe rules of practice, procedure and evidence

for cases in the district courts, including proceedings before magistrates. 

j. Ethics Reform Act of 1989

H.R. 3660, the Ethics Reform Act, was introduced in the House by Congressman Foley on

November 15, 1989. It provided for a 25% salary increase for Article III judges and full-time

magistrates in conjunction with limitations on outside earned income, outside employment and

honoraria.

The act passed the House on November 16, 1989. The Senate passed an amendment in the

nature of a substitute by voice vote on November 17, 1989, and the House concurred in the

amendment by voice vote on the same day. The act was signed by the President on November 30,

1989.242

(1) Salary Increase

Section 703 of Title VII of the act provided Article III judges with a 25% salary increase
Continuing Appropriations Act, 243 Pub. L. No. 100-202, Title IV, sect. 408, 

101 Stat. 1329 (1987).

JCUS-MAR 87, p. 32.

244

A March 1988 standing resolution of the Judicial Conference does grant to

245

part-time magistrates automatically the same "cost-of-living adjustments" (in

percentage terms) as are extended to full-time magistrates.

JCUS-SEP 90, p. 93.

246

At its meeting in June 1990, the Magistrates Committee had discussed at length 247

whether to recommend that the Judicial Conference extend the 25% salary

increase to part-time magistrates. The Committee reported to the Judicial

Conference that "your Committee determined that extension of a 25% salary

increase to part-time magistrates at this time would impede the transition to a

full-time magistrates system."

73

effective the first pay period on or after January 1, 1991. The salaries of bankruptcy judges and the

ceiling on the salaries of full-time magistrates are set at 92% of the salary of district judges by 28

U.S.C. §§ 153 and 634, respectively. A March 1987 standing resolution of the Judicial Conference

243

provides that salary increases granted to bankruptcy judges automatically will be extended to full-time

magistrates.244

The salary increase did not extend to part-time magistrates. A specific resolution of the

Judicial Conference is necessary for part-time magistrates to receive a salary adjustment. Section 245

634 of title 28, enacted in 1976, places a ceiling on the salaries of part-time magistrates at not more

than "one-half the maximum salary payable to a full-time magistrate." At its meeting in September

1990, the Judicial Conference declined to extend the 25% salary increase to part-time magistrates

"[i]n keeping with this preference for full-time magistrate positions...." Instead, the Conference

246

approved a cost-of-living adjustment for part-time magistrates in the same percentage as granted by

the Congress to federal employees generally in 1991.247

(2) Ethics Reform

In conjunction with the salary increase, the Ethics Reform Act placed new restrictions on

financial disclosure (Title II), gifts and travel (Title III), and outside employment and elimination of

honoraria (Title VI). The Act authorized the Judicial Conference to promulgate rules to implement

its provisions, and permitted the Conference to issue advisory opinions.

Volume II of the Guide to Judiciary Policies and Procedures contains the codes of conduct

for judges and judicial employees. Chapter I, "Code of Conduct for United States Judges," applies

to district judges, bankruptcy judges, and magistrates. Advisory opinions published by the Judicial

Conference Committee on the Codes of Conduct are contained in Chapter IV. The regulations of the
See generally H.R. DOC. NO. 185, 101st Cong., 2d Sess. (May 1, 1990), for 248

the amendments to the rules and excerpts from the report of the Judicial

Conference containing the advisory committee notes. The Supreme Court

declined to adopt proposed rule 41(a)(3), which would have authorized federal

magistrates (including U.S. magistrate judges) to issue warrants to search

property outside the United States.

Id. at 35-36. 249

250 Pub. L. No. 110-406, 122 Stat. 4291 (2008).

74

Judicial Conference promulgated under the authority of the Ethics Reform Act are located in Volume

II, Chapter V, of the Guide.

k. 1990 Amendments to the Federal Rules of Criminal Procedure

On May 1, 1990, the Chief Justice submitted to Congress several amendments to the Federal

Rules of Criminal Procedure. The rules went into effect December 1, 1991. New criminal rule 58 248

abrogated and replaced the Rules of Procedure for the Trial of Misdemeanors before United States

Magistrates [hereinafter Misdemeanor Rules].

Fed. R. Crim. P. 58 largely restated the Misdemeanor Rules, which had been promulgated in

1980 to implement the 1979 Congressional grant of authority to magistrates to trymisdemeanor cases

with the consent of the parties. The advisory committee note indicates that a single new rule should

be incorporated into the Rules of Criminal Procedure so that those charged with its execution may

locate it readily and use it in connection with the other criminal rules. The title of the new rule,

"Procedures for Misdemeanors and Other Petty Offenses," deletes a reference to magistrates to

indicate that the rule is to be used by district judges as well.249

Most of the changes to the Misdemeanor Rules were technical only. The advisory committee

note indicates that no major changes were envisioned in the trial procedures for misdemeanor and

petty offense cases.

l. Magistrate Judge Participation in Circuit Conferences

On October 13, 2008, President Bush signed into law the “Judicial Administration and

Technical Amendments Act of 2008" (S. 3569). Section 9 of the new law (which amended 250 28

U.S.C. § 333) added magistrate judges to the list of circuit, district, and bankruptcy judges in active

service, who may by statute be summoned by the chief judges of the circuits to attend circuit judicial

conferences. Magistrate judges were not included in Section 333 upon its enactment in 1939 because

the modern office of magistrate judge was not created until 1968. As a practical matter, however,

magistrate judges in all circuits participate in circuit judicial conferences either by invitation of the
Section 10 of the Judicial Administration and Technical Amendments Act of 251

2008 also amended 18 U.S.C. § 3152(c) to provide that chief pretrial services

officers are to be chosen in the same way as chief probation officers, i.e. “ by

the district court.” This section removed magistrate judges’ absolute right to

be included in the selection process for these officers, which had been their

right under the previous version of 18 U.S.C. § 3152(c).

1976 HOUSE REPORT, supra note 114, at 8. 252

Id. The Committee felt that the magistrates system would withstand 253

constitutional scrutiny in a single-tiered system, even though it would not be

feasible for "every judicial act, at every stage of the proceeding, to be

performed by a ' judge of the court.' " See also 1979 HOUSE REPORT, supra

note 173, at 7 n.16.

S. CONF. REP. NO. 322, 96th Cong., 1st Sess. 7 (1979); 1979 CONFERENCE

254

REPORT, supra note 177, at 7.

75

chief judge or as provided by circuit rules.251

m. Other Policies

(1) Original Jurisdiction

The issue of whether magistrates may exercise original jurisdiction in certain categories of

cases has been debated since the creation of the system in 1968. The discussion has centered most

recently on whether the requirement of defendants' consent to magistrate jurisdiction in petty offense

cases should be eliminated. See §§ 2.17(a)(2) and (3), infra. 

In 1976 the House Committee on the Judiciary discussed whether a multi-tiered district court

would result should Congress grant original jurisdiction in certain instances to magistrates. The 252

Committee acknowledged that multi-tiered systems develop in recognition of the fact that certain

cases and judicial functions are of differing importance and thus justify different treatment by the

court system. Therefore, the Committee believed it would be constitutional for Congress to create

a lower-tier court roughly equivalent to state municipal courts. The concept of a two-tiered system

was ultimately rejected by the Committee in favor of a single-tier district court, where magistrates

serve in a supplementary role to assist Article III judges. 

253

In providing magistrates with the authority to try civil cases with the consent of the parties,

Congress made clear that no limitation is to be placed on the type of case which can be referred to a

magistrate under 28 U.S.C. § 636(c). Both the Senate and House conference reports to the 1979 254

amendments of the Federal Magistrates Act state succinctly: "No categorization of types of cases to
Id. 255

Report to the Congress by the Judicial Conference of the United States, The 256

Federal Magistrates System, 49 (December 1981). Acknowledging a de facto

categorization of petty offense and misdemeanor cases, the Conference

discusses at length the disadvantages of a multi-tiered court system. Id. at 41-

43.

JCUS-SEP 82, pp. 92-3. 257

In March 1980, the Conference disapproved in principle legislation mandating 258

that district courts automatically refer particular types of case to magistrate

judges (proposed Small Business Judicial Access Act of 1980). In March

1983, the Conference reaffirmed its opposition to legislative proposals either

prohibiting or mandating the reference of specific cases to magistrate judges

(proposed Judicial Reform Act of 1982). In a prepared statement delivered to

Congress on September 11, 1986, Chief Judge H. Dale Cook stated on behalf

of the Conference that the "creation of an additional tier of special magistrates

[for cases arising on Indian reservations] is unnecessary and is opposed, as a

matter of policy." In September 1990, the Conference reaffirmed its

disapproval of legislation "which mandates that a district court automatically

refer particular types of cases to magistrates," and objected to proposed

legislation which would vest magistrates with authority to decide certain

76

be tried by magistrates is to be allowed." 

255

In its 1981 report to Congress, the Judicial Conference stated that "'original' jurisdiction over

any specific categories of cases should not be vested directly in United States magistrates." In 256

September 1982, the Conference approved the following resolution:

Resolved, that it continues to be the position of the Judicial Conference of the

United States that the Federal Magistrates System should continue to be an

integral part of the district courts, that the jurisdiction of magistrates should

remain "open" and should neither be expanded to include "original"

jurisdiction in special categories of cases, nor restricted in special types of

cases or proceedings. It is, furthermore, the policy of the Judicial Conference

to encourage the full and effective utilization of United States magistrates by

the district courts in civil and criminal cases under existing statutory authority

and to oppose restrictions on the utilization of magistrates by the district

courts.257

On several occasions the Judicial Conference has opposed the creation of original jurisdiction in

magistrates and disapproved legislation mandating that district courts automatically refer particular

types of cases to magistrates. The Magistrates Committee has also opposed such legislation. 258 259
Federal Tort Claims Act cases automatically (recommendation of the Federal

Courts Study Committee).

In June 1989, the Committee disagreed with the proposition that legislation 259

should be recommended to presume consent in civil cases unless later objected

to by the parties. At the same time, the Committee opposed a recommendation

by the Federal Courts Study Committee to authorize magistrate judges to try

cases without the consent of the parties in certain non-Article III type cases

(cases under the Federal Tort Claims Act). In December 1990, the Committee

declined to endorse a proposal to enact legislation providing magistrate judges

with original, nonconsensual jurisdiction over landlord-tenant disputes arising

from public housing authorities located on Indian reservations.

See notes 37, 47, 85, 167, 184 and 207, supra, and accompanying text. 260

77

(2) Preference for Full-time Judicial Officers

The Judicial Conference and the Magistrates Committee have on several occasions taken

action to implement the Congressional and Conference policy favoring full-time magistrate positions

rather than part-time positions. In addition, related concerns regarding potential role confusion 260

have led to policies disfavoring combination clerk-magistrate positions. 

The Magistrates Committee approved a policy in July 1985 whereby courts with a

combination clerk-magistrate position were to be advised during the survey process of the general

policy disfavoring such positions. Upon the occurrence of a vacancy, the Committee stated, the need

for the position would be reassessed in light of the criteria for initial approval of such positions.

At its June 1990 meeting, the Magistrates Committee made the following recommendation

for consideration by the Judicial Conference in September 1990:

Your Committee concluded that it must move faster in achieving a system

composed primarily of full-time magistrates. Consequently, your Committee

concluded that all part-time magistrate positions should be examined in the

near future, with a view towards expediting the process of eliminating,

consolidating, or converting the positions. Some part-time magistrate

positions will undoubtedly need to be retained at locations where the volume

of district court business clearly does not warrant the authorization of a fulltime magistrate position, but where other legitimate considerations exist. In

this respect, your Committee is of the opinion that geographical

considerations and the cost-savings generally associated with part-time

magistrate positions are not sufficient in and of themselves to justify retention

of individual part-time magistrate positions.
JCUS-SEP 90, p. 93.

261

78

In September 1990, the Judicial Conference reaffirmed its preference for a system of full-time judicial

officers. It endorsed the plans of the Magistrates Committee to review each part-time magistrate

position on an individual basis with a view towards eliminating as many of the part-time positions

as feasible, either by abolishing them, combining them, or converting them to full-time status.

261

The Magistrates Committee reaffirmed its policies disfavoring combination clerk-magistrate

positions at its meeting in December 1990, and it adopted two additional policy statements. First, a

clerk-magistrate position in a district would be reviewed with a view toward its elimination whenever

a district requested the authorization of additional magistrate resources. Second, clerk-magistrate

positions would be discontinued absent compelling and unusual circumstances whenever vacancies

occurred.

(3) Survey Methodology

The Federal Magistrates Act of 1968 empowered the Judicial Conference to make changes

in the number, locations, and salaries of magistrate positions. The Conference directed the Director

of the Administrative Office to prepare local surveys regarding the needs of each district court for

magistrate services. The Director in turn delegated the preparation of survey reports to the

Magistrates Division.

Originally, the Magistrates Division prepared a survey report for consideration by the

Magistrates Committee prior to the scheduled expiration of the term of each full-time or part-time

magistrate position. The survey made recommendations as to whether the position should be

continued for an additional eight-year or four-year term and whether any change should be made in

the salary or other arrangements. Many such surveys involved the routine continuation of magistrate

positions and were triggered automatically by the impending expiration of an incumbent's term.

At its December 1990 meeting, the Magistrates Committee discussed and recommended

certain changes in the timing and methodology of the survey process. As a result, the Judicial

Conference approved the following resolution:

In light of twenty years' experience with the magistrate judge system, the

Judicial Conference determines that surveys of magistrate judge positions

prior to the expiration of the incumbents' terms are no longer necessary.

Absent specific action, the Conference determines that all magistrate judge

positions continue to be needed with no change in the salary or arrangements.

In accordance with 28 U.S.C. § 633(a)(1), the Conference deems it expedient

to direct the Director of the Administrative Office periodically to prepare

local surveys reviewing all magistrate judge resources in each district to

determine whether there should be changes in the numbers, locations,

salaries, or arrangements. Each district will be surveyed no less frequently
JCUS-MAR 91, p. 21.

262

Federal Courts Study Act, 263 Pub. L. No. 100-702, 102 Stat. 4642 (1988).

Admin. Office of the U.S. Courts, The Federal Magistrates System: Report to

264

the Subcomm. on the Structure of the Federal Courts of the Federal Courts

79

than every four years, if the district is authorized part-time magistrate judge

positions, or every five years, if the district is authorized only full-time

magistrate judge positions. Specific Judicial Conference action will be

required only in instances where new magistrate judge positions are

authorized, a position is terminated, or where a change is required in the

salary or arrangements.

262

With surveys to be conducted less frequently than before, each report now reviews all full-time and

part-time magistrate positions in a given district.

(4) Long Range Plan for the Federal Courts

In December 1995, the Judicial Conference approved a comprehensive Long Range Plan for

the Federal Courts to guide future policy-making of the judicial branch. The Long Range Plan

included several recommendations concerning the utilization of magistrate judges. Of particular

importance is recommendation 65 which states that:

Magistrate judges should perform judicial duties to the extent constitutionally permissible

and consistent with sound judicial policy. Individual districts should retain flexibility,

consistent with the national goal of effective utilization of all magistrate judge resources,

to have magistrate judges perform judicial services most needed in light of local

conditions and changing caseloads.

17. Federal Courts Study Committee

In 1988 Congress created the Federal Courts Study Committee [FCSC] within the Judicial

Conference, with fifteen members appointed by Chief Justice Rehnquist. Congress directed the

committee to "recommend revisions to be made to laws of the United States as the Committee, on the

basis of such study, deems advisable...." On December 22, 1989, the Committee distributed a draft 263

copy of its recommendations for public comment. Its final report was issued on April 2, 1990.

a. Proposals Submitted by the Magistrates Committee

The Magistrates Committee considered recommendations to the Federal Courts Study

Committee at its meeting in June 1989. The Committee reviewed a background paper on the

magistrates system prepared by the Magistrates Division of the Administrative Office. The 264
Study Committee, (May 1, 1989).

The Committee made the following recommendations regarding the basic 265

structure of the magistrates system: (1) the Judicial Conference should continue

to authorize magistrate positions; (2) the district courts should continue to

appoint individual magistrates; (3) the present eight-year term of office for fulltime magistrates should not be changed; and (4) the Judicial Conference should

continue to fix the salaries of magistrates. Committee on the Administration of

the Federal Magistrates System, The Federal Magistrates System: Report to the

Federal Courts Study Committee on the Present State of the Federal

Magistrates System and the Role of Magistrates Into the Twenty-first Century,

3-7 (June 27, 1989).

Id. at 1. 266

80

recommendations of the Magistrates Committee were submitted to a subcommittee of the Federal

Courts Study Committee in a report dated June 27, 1989. In the report, the Magistrates Committee

expressed its opinion that the magistrates system was working well and that fundamental changes

should not be made.265

The Magistrates Committee also recommended the enactment of legislation to implement

certain changes in the system. The Committee cautioned, however, "that substantial changes in the

jurisdictional authority of magistrates, especially regarding civil consent power, may lead eventually

to a role transformation and thusshould be considered very carefully." The Committee's proposals 266

included the following "fine-tuning adjustments" to the magistrates system.

(1) Contempt Authority

In 1981, the Judicial Conference had examined the issue of contempt authority for magistrate

judges and stated that empirical data was unavailable concerning the need for such authority. The

Conference recommended that Congress might wish to consider whether a need to extend contempt

powers to magistrate judges existed, either limited to a specific number of days of incarceration

and/or a dollar fine limit.

The Magistrates Committee addressed the issue at its June 1989 meeting. Recognizing that

there may be constitutional concerns, the Committee agreed that a need existed to provide magistrate

judges with the power to issue contempt orders contemporaneous with the contumacious behavior:

The Magistrates Committee is concerned, however, that the lack of power to

impose immediate sanctions for misbehavior committed during court

proceedings engenders disrespect of the office, and more importantly,

undermines the integrity of the judicial proceeding itself. In particularly

litigious courts, this inability sometimes serves to embolden counsel to test
Id. at 8. 267

The subcommittee report to the FCSC provided the reasoning behind the 268

decision not to make a recommendation on contempt power for magistrates.

The subcommittee wrote, "[T]his is a fine-tuning issue better left to some other

committee. Also, the issue of contempt is fraught with constitutional hurdles,

as has been demonstrated by the recent history of cases involving the

bankruptcy judges." Report of the Subcommittee on Structure to the Federal

Courts Study Committee, at 7.

The proposed Federal Court Improvement Act of 1998. 269

JCUS-MAR 96, p. 29.

270

81

the ability of a magistrate to control a proceeding.267

The Committee also agreed that legislation should be recommended to provide magistrate judges with

limited contempt power similar to the power provided to bankruptcy judges under Bankruptcy Rule

9020, subject to further consideration of the constitutional issues.

The recommendation of the Magistrates Committee was transmitted to the Federal Courts

Study Committee. The FCSC's report in April 1990 did not comment on the issue of contempt

authority. However, in August 1990, the Executive Committee of the Judicial Conference 268

responded to proposed legislation in the 105 Congress (S.2516 and H.R. 2294) that would have th 269

provided limited contempt authority to magistrate judges by opposing any change to 28 U.S.C. §

636(e) related to the contempt power of magistrate judges.

Upon reconsideration of the issue in June 1992, the Magistrate Judges Committee reaffirmed

in principle its June 1989 view that a need existed to provide magistrate judges with summary

contempt power, but declined to request that the Judicial Conference seek specific legislation in its

report to the Conference. Then, in 1995, the Long Range Plan for the Federal Courts included a

recommendation to vest magistrate judges with limited contempt authority. In December 1995, the

Magistrate Judges Committee recommended to the Judicial Conference that it endorse a proposed

amendment of 28 U.S.C. § 636(e) to provide magistrate judges with summary contempt authority for

criminal contempts that occur in their presence and additional civil and criminal contempt authority

in civil consent and misdemeanor cases.

In March 1996, the Judicial Conference approved the Committee’s recommendation and

endorsed for the first time a proposed amendment of 28 U.S.C. §636(e) to provide magistrate judges

with summary contempt authority for criminal contempts that occur in their presence and additional

contempt authority in civil consent cases.270
A complete chronology of actions taken by both the Conference and Congress 271

is contained as an appendix to the Magistrate Committee's report to the Federal

Courts Study Committee.

JCUS-SEP 91, pp. 66-67. 272

Report to the Congress by the Judicial Conference of the United States, The 273

Federal Magistrates System, at iv-v (December 1981).

Id. at 57.

274

In discussing why it did not recommend eliminating the written consent 275

requirement for petty offenses, the subcommittee wrote, "As a Subcommittee,

we had no objection to this proposal. However, any time-saving would be

negligible and frankly the issue seemed too specific for the broad mandate of

our committee. " Report of the Subcommittee on Structure to the Federal Courts

82

Ultimately, the Judicial Conference approved the enhancements to magistrate judge contempt

authority, and they were included in the Federal Courts Improvement Act of 2000 (see § 22, infra).

(2) Consent in Petty Offense Cases

The Magistrates Committee made two separate recommendations regarding the right of a

defendant in a petty offense case to proceed to trial before an Article III judge: (1) the requirement

of consent in all petty offense cases should be eliminated; or (2) if consent in petty offense cases is

not eliminated altogether, the requirement of filing a written consent should be eliminated. Both ideas

were discussed repeatedly by the Judicial Conference and in the Congress for many years.

271

In September 1991, the Judicial Conference endorsed a provision in a “housekeeping” bill

drafted by the Legislative and Public Affairs Office of the Administrative Office and recommended

by the Magistrate Judges Committee that, if passed, would have eliminated the consent requirement

in petty offense cases.272

Elimination oftheFiling of a Written Consent. The Judicial Conference had recommended

in its December 1981 report to Congress that "[t]he Federal Magistrates Act should be amended to

provide that the consent of a defendant in a petty offense case to trial by a magistrate be made merely

on the record, without the requirement that it bemade in writing." The Conference considered such

273

an amendment to be "administratively advantageous," reducing paperwork burdens of the court.

274

In its June 1989 recommendations to the FCSC, the Magistrates Committee reaffirmed the

Conference's 1981 recommendation to Congress. The Committee attributed the absence of legislation

to abolish the written consent requirement more to the lack of a suitable legislative vehicle than to

the presence of any identifiable opposition or objection. The FCSC's Report in April 1990, however,

did not include a discussion of this issue.275
Study Committee, at 7.

See 1977 SENATE REPORT, supra note 85, at 5. The Senate felt that the 276

requirement that a defendant in a petty offense case waive the right to be tried

before an Article III judge and consent to trial by a magistrate judge was not

constitutionally required, that it lengthened the time needed to hear each case,

and that it produced a growing volume of unnecessary paperwork. Id. at 6.

1979 HOUSE REPORT, supra note 173, at 18.

277

Report to the Congress by the Judicial Conference of the United States, The 278

Federal Magistrates System, 57-58 (December 1981).

Committee on the Administration of the Federal Magistrates System, The 279

Federal Magistrates System: Report to the Federal Courts Study Committee on

the Present State of the Federal Magistrates System and the Role of Magistrates

Into the Twenty-first Century, 10 (June 27, 1989).

83

Elimination of the Consent Requirement. The Judicial Conference had favored the

elimination of the consent requirement during the passage of the 1979 amendments to the Federal

Magistrates Act. The Senate had approved such a proposal in 1977, but the House objected to the 276

provision and the consent requirement was reinstated into the legislation ultimately enacted into law.

The report of the House Judiciary Committee explained that the provision had been retained for two

policy reasons: (1) "fundamental notions of equality" dictated that petty offenders be accorded the

same right to be tried by a district judge as other criminal defendants or civil litigants; and (2) the vast

majority of defendants consent to trial by a magistrate in any event. Because of this policy decision, 277

the House Committee declined to take a position on the constitutionality of nonconsensual trials of

petty offense cases before magistrates.

The Judicial Conference revisited the issue in 1981 in its report to Congress. The Conference

affirmed the justifications for eliminating consent in petty offense cases, but refrained from

recommending legislation in light of Congress' action in 1979. Instead, the Conference suggested

only that Congress re-examine the issue.278

The Magistrates Committee considered this subject at its meeting in December 1985 at the

request of the Department of Justice, which favored the elimination of the consent requirement. The

Committee decided not to act on the Department's proposal until the constitutional and policy issues

could be studied more fully.

When the Magistrates Committee again considered the elimination of the consent requirement

at its meeting in June 1989, it noted that "[u]nlike the filing of a written consent, the elimination of

consent entirely has encountered some opposition." In recommending to the FCSC that the consent 279

requirement be eliminated, the Committee stated, "[t]he requirement of consent is not necessary,
Id.

280

As with the proposal to eliminate the written consent requirement, the 281

subcommittee's report sheds some light on why the FCSC did not comment on

this issue. "There are philosophical problems with eliminating consent

altogether. In effect, this would be the first step in creating a two-tier trial

court system." Report of the Subcommittee on Structure to the Federal Courts

Study Committee, at 8.

84

particularly in light of the enhanced caliber of professionals appointed as magistrates." However, 280

in the April 1990 FCSC Report did not comment on the proposal to eliminate the consent requirement

in petty offense cases.281

Pursuant to a request of the Executive Committee that each Conference committee biennially

review items for legislative action within its jurisdiction to consider whether any provisions

previously approved by the Conference and not enacted should continue to be pursued, in March

1999, the Magistrate Judges Committee reaffirmed its support of the following four legislative

proposals that had been approved by the Judicial Conference and that affected the magistrate judges

system:

(1) provide magistrate judges with the powerto exercise limited summary criminal contempt

authority for misbehavior occurring in their presence, and with additional civil and criminal

contempt authority in civil consent and misdemeanor cases;

(2) eliminate the requirement that a defendant, including a juvenile, consent to the jurisdiction

of a magistrate judge in all petty offense cases;

(3) give magistrate judges authority over class A misdemeanors involving juvenile defendants

and provide magistrate judges with the authority to sentence juvenile defendants to terms of

imprisonment in petty offense and misdemeanor cases; and

(4) provide the Judicial Conference with authority to establish magistrate judge positions in

the District Court of Guam and the District Court for the Northern Mariana Islands.

Ultimately, all of these proposals were implemented by the Federal Courts Improvement Act

of 1996 (see § 21, infra), or the Federal Courts Improvement Act of 2000 (see § 22, infra).

(3) Relaxation of Consent Procedures for Civil Trials

In its June 1989 report to the Federal Courts Study Committee, the Magistrates Committee

recommended that district judges and magistrates be allowed to advise and encourage parties at any

time prior to trial to consent to have a civil case tried by a magistrate. This recommendation was

endorsed by the FCSC in April 1990 and was subsequently enacted into law as part of the Judicial
Report of the Subcommittee on Structure to the Federal Courts Study 282

Committee, at 7. Regarding the preference for "magistrate judge, " the

subcommittee wrote, "That title implies no independent role but recognizes that

when a judicial officer acts with full authority, as in consent cases, he or she

acts as a judge and merits the respect of that office." Id. 

85

Improvements Act of 1990. See § 2.18(b)(2), infra.

At the same time, the Magistrates Committee rejected a proposal urging legislation to

recognize "original" jurisdiction for magistrates by authorizing them to try cases without the consent

of the parties in certain non-article III type cases (primarily federally-created remedies under Article

I). The Committee also rejected a proposal to recommend legislation to presume consent in civil

cases unless later objected to by the parties. The Committee was concerned that such changes might

transform the magistrates system into a separate and independent tier of the Judiciary.

(4) Change of Title

In June 1988 the Magistrates Committee endorsed the practice of addressing a magistrate as

"Judge" or "Your Honor" in the courtroom. No official change in title, by way of legislation, was

proposed at that time. In June 1989 the Committee voted to recommend to the Federal Courts Study

Committee that legislation be proposed to change the title of full-time magistrates to include the word

"judge."

The Federal Courts Study Committee made no recommendation on a change in title in its

April 1990 report. Instead, the FCSC's Subcommittee on Structure proposed that, if the Judicial

Conference were to recommend a change in title, the title chosen be "Magistrate Judge." See 282

§ 2.18(b)(1), infra.

(5) Appellate Magistrates

In July 1981 the Magistrates Committee was asked to consider the concept of establishing a

new class of judicial officers called "appellate magistrates." The primary functions of the new

positions, which would be established in the courts of appeals, would be to prepare reports and

recommended dispositions in frivolous appeals and to enter orders on the consolidation of appeals,

the establishment of schedules, and pre-argument conferences.

The Magistrates Committee declined to endorse the concept. The Committee was concerned

about the prospect that an appellate magistrate, as a subordinate judicial officer, might in effect be

called upon to review the work of or otherwise "second-guess" district court judges. 

The issue of creating a new tier of appellate magistrates was discussed in the report of the

Magistrates Committee to the FCSC in June 1989. The Magistrates Committee strongly reaffirmed
Report of the Federal Courts Study Committee, 79 (April 2, 1990). 283

See § 18(b)(2). 284

See generally § 19. 285

86

its opposition to appellate review by "appellate magistrates." The concept was not discussed by either

the Subcommittee on Structure or the full Federal Courts Study Committee.

b. Recommendations of the Federal Courts Study Committee

The final report of the Federal Courts Study Committee in April 1990 commented favorably

on the magistrates system as a whole. The report stated that magistrate judges play a "vital role" in

the work of the federal courts, and that the role of magistrate judges must continue to be "supportive

and flexible."283

The FCSC made the following recommendations relating to the magistrates system: (1)

Congress should amend 28 U.S.C. § 636(c)(2) to allow district judges and magistrates to remind

parties of the possibilities of consent to civil trials before magistrates; (2) the Judicial Conference

should authorize a study of the constitutional limits of United States magistrates' possible jurisdiction

and catalog their duties; (3) Congress should establish a $10,000 minimum jurisdictional amount for

federal tort claims and establish a small-claims procedure for claims below the minimum (one

possible procedure being the establishment of divisions in the district court administered by

magistrate judges); (4) courts should consider using magistrates or special masters as fee taxing

masters to simplify the process of assessing attorney fee awards; and (5) the Judiciary should

endeavor to select the most qualified people to serve as supporting personnel of the federal courts,

including bankruptcy judges and magistrates, with due regard for the heterogeneity of the American

people. 

In anticipation of legislation to implement the recommendations contained in the FCSC report,

the Executive Committee of the Judicial Conference requested the chairmen of the committees of the

Conference to review those recommendations in the report which would affect their Committee's

particular responsibilities. On behalf of the Magistrates Committee, Circuit Judge Joseph W. Hatchett

responded and noted the positions taken on each item by the Conference or the Committee:

(1) The Magistrates Committee "strongly" endorsed the relaxation of the statutory restrictions

which discouraged parties from consenting to the trial of their case before a magistrate

under 28 U.S.C. § 636(c).

284

(2) A Judicial Conference study of the constitutional limits of the jurisdiction of magistrates

"falls within the scope" of the Committee's general responsibility to oversee the

magistrates system and its responsibility to supervise the Administrative Office in matters

affecting the system.285
At its June 1990 meeting, the Magistrates Committee reaffirmed this policy and 286

authorized staff to advise and work with the appropriate committee of the

Judicial Conference to oppose legislation to enact the FCSC's recommendation.

287 Pub. L. No. 101-650, 104 Stat. 5089 (1990).

87

(3) Divisions in the courts for federal tort claims, administered entirely by magistrates,

"would conflict with longstanding policy of the Judicial Conference" that the jurisdiction

of magistrates remain "open" and not be expanded to include "original" jurisdiction.286

(4) The use of magistrates to assess attorney fee awards "complies with the general Judicial

Conference policy which encourages courts to utilize magistrates fully."

(5) The Magistrates Committee "has taken several positive actions to ensure" the selection

of the best qualified magistrates, with due regard for the heterogeneity of the American

people, through the promulgation of selection regulations for the office of magistrate and

an explanatory pamphlet.

An additional recommendation was to extend the life of the United States Parole Commission

or create a successor agency to conduct supervised release revocation hearings. At its 1989 summer

meeting, the Committee on Criminal Law and Probation Administration adopted a resolution

objecting to the establishment of an independent administrative agency for the purpose of conducting

revocation of supervised release proceedings. The Committee also resolved that Article III judges

or magistrates should conduct these proceedings. The Magistrates Committee in June 1990 agreed

unanimously that magistrates would be appropriate judicial officers to conduct supervised release

revocation proceedings, but that the findings of a magistrate in a final revocation proceeding should

be submitted to the court on a report and recommendation basis.

18. Judicial Improvements Act of 1990

The Judicial Improvements Act of 1990 was signed by President Bush on December 1, 287

1990. Title I of that legislation consisted of the Civil Justice Reform Act. Title III contained the

Federal Courts Study Committee Implementation Act. Other titles created new Article III judgeships

and revised judicial discipline and removal procedures. The Judicial Improvements Act amended the

Federal Magistrates Act, and had far-reaching effects on the Judiciary as a whole.

a. Civil Justice Reform Act

Senator Biden and Senator Thurmond initially introduced the Civil Justice Reform Act on

January 25, 1990, as S. 2027. The stated purpose of the legislation was to improve access to the
The bill was based upon recommendations contained in a Brookings Institution 288

task force report entitled Justice for All--Reducing Costs and Delay in Civil

Litigation.

S. REP. NO. 416, 101st Cong., 2d Sess. 20 (Aug. 3, 1990), reprinted at 1990 289

U.S.C.C.A.N. 6823.

See The Civil Justice Reform Act: Hearing on S. 2027 Before the Senate 290

Judiciary Comm., 101st Cong., 2d Sess. 108 (March 6, 1990) (testimony of

Judge Richard A. Enslen and Judge Aubrey E. Robinson, Jr.).

88

courts by reducing costs and delays in civil litigation.288

(1) S. 2027 and its Treatment of Magistrate Judges

S. 2027 would have required that "a mandatory discovery-case management conference,

presided over by a judge and not a magistrate, be held in all cases...," and would have otherwise

reduced the role of magistrate judges in the pretrial process. In testimony before the Judiciary 289

Committee, several witnesses, including the Judicial Conference's representative, favored

reinstatement of a pretrial role for magistrate judges. Staff members of the Judiciary Committee 290

also met with representatives of the National Council of United States Magistrates in April 1990. The

Council, too, had opposed the provisions of S. 2027 prohibiting the involvement of magistrate judges

at the pretrial stage of a case.

(2) The Judicial Conference's Response to S. 2027

At its meeting in March 1990, the Judicial Conference unanimously voted to oppose S. 2027

and its House counterpart, H.R. 3898. The Conference reaffirmed the Judiciary's longstanding

commitment to case management and resolved to seek constructive solutions to the problems raised

by Senator Biden. The Conference created a task force headed by Judge Robert Peckham to discuss

alternatives to the bill with the Judiciary Committee.

Chief Justice Rehnquist met with Senator Biden in April 1990 to discuss the Judiciary's

concerns with the legislation. The task force and the Executive Committee of the Judicial Conference

subsequently proposed that the Judiciary implement a voluntary 14-point civil case management

program rather than submit alternative legislation. The Conference approved the 14-point plan by

mail ballot in late April 1990. 

(3) S. 2648 and Revisions to Civil Justice Reform

After discussions were held with members of the Judicial Conference, the bill was revised and

resubmitted on May 17, 1990, as S. 2648. Senator Biden noted in his statement introducing S. 2648

that the bill reflected a number of changes made in the original legislation, S. 2027. Responding to
136 CONG. REC. S6473 (daily ed. May 17, 1990). 291

S. REP. NO. 416, 101st Cong., 2d Sess. 20 (Aug. 3, 1990) (footnote omitted),

292

reprinted at 1990 U.S.C.C.A.N. 6823. Noting that the Judicial Improvements

Act in its current form would provide for the exercise of the "full role of

magistrates in the pretrial process," the Committee stated that valid questions

had been raised about the full extent of magistrates' constitutional authority.

The Committee therefore endorsed the recommendation of the Federal Courts

Study Committee that the Judicial Conference conduct an in depth study of

magistrate judge authority. Id. at 20 n.10. See infra § 2.19.

89

testimony at the Judiciary Committee's first hearing on the original bill, the revised legislation

restored the full role of magistrate judges in the pretrial process.291

The report provided several reasons for utilizing magistrate judges fully in the pretrial stages

of civil litigation. First, the Committee noted that fewer cases may settle if an Article III judge

presides over each conference, since the parties would be reluctant to be "frank" with the judge who

would ultimately preside over a trial. Second, permitting magistrate judges to conduct casemanagement conferences would leave Article III judges with more time to perform adjudicatory

functions. Finally, "given the increasingly heavy demands of the civil and criminal dockets and the

increasingly high quality of the magistrates themselves, the committee believes that magistrates can

and should play an important role, particularly in the pretrial and case management process."292

The Act was signed into law by the President on December 1, 1990. At its March 1991

meeting, the Judicial Conference rescinded the 14-point plan as redundant, except as already

implemented.

b. Federal Courts Study Committee Implementation Act

Title III of the Judicial Improvements Act of 1990 contained the Federal Courts Study

Committee Implementation Act. On July 26, 1990, Congressmen Kastenmeier and Moorhead

introduced H.R. 5381, an omnibus court reform bill to implement many of the recommendations of

the FCSC. Its companion bill, title III of S. 2648, was introduced in the Senate by Senator Biden.

The original version of the legislation contained proposals to: (1) eliminate the requirement

of written consent to trial before magistrate judges in petty offense cases; (2) permit magistrate judges

to conduct jury selection in criminal and civil cases upon the consent of the parties; and (3) authorize

magistrate judges to conduct supervised release revocation proceedings and submit proposed

recommendationsto a district judge. These proposals were deleted from the final version of the Act.

The Act's statement of purpose described the legislation as proposing "noncontroversial"

recommendations of the Federal Courts Study Committee. The Federal Courts Study Committee

Implementation Act contained several significant amendments to the Federal Magistrates Act.
H.R. REP. NO. 734, 101st Cong., 2d Sess. 31 (1990), reprinted at 1990 293

U.S.C.C.A.N. 6877.

Id. 294

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(1) Change of Title

H.R. 5381 provided for a change of title for magistrates to "Assistant United States District

Judge." The Executive Committee of the Judicial Conference, acting on behalf of the full

Conference, opposed any formal name change for magistrates.

Section 321 of the Act ultimately changed the title of a United States magistrate to "United

States magistrate judge." The section states:

After the enactment of this Act, each United States magistrate appointed

under section 631 of title 28, United States Code, shall be known as a United

States magistrate judge, and any reference to any United States magistrate or

magistrate that is contained in title 28, United States Code, in any other

Federal statute, or in any regulation of any department or agency of the

United States in the executive branch that was issued before the enactment

of this Act, shall be deemed to refer to a United States magistrate judge

appointed under section 631 of title 28, United States Code.

The title change applies equally to both part-time and full-time magistrate judges.293

The committee report noted that the title "judge" is commonly assigned to non-Article III

adjudicators in the federal court system, and that the new title of magistrate judge is consistent with

that of other judicial officers such as bankruptcy judges, tax court judges and claims court judges.

"The provision is one of nomenclature only and is designed to reflect more accurately the

responsibilities and duties of the office. It is not intended to affect the substantive authority or

jurisdiction of full-time or part-time magistrates."294

On June 4, 1991, the Executive Committee of the Judicial Conference changed the name of

the Magistrates Committee to "Committee on the Administration of the Magistrate Judges System."

In addition, the Magistrates Division of the Administrative Office became the "Magistrate Judges

Division" on June 28, 1991.

(2) Consent to Trial in Civil Actions

Section 308(a) of the Act amended 28 U.S.C. § 636(c)(2) to permit judges and magistrate

judges to advise civil litigants of the option to consent to trial by a magistrate judge. Under the

previous language of the statute, district judges and magistrate judges were prohibited from

persuading or inducing any party to consent to the reference of a civil matter to a magistrate judge for
Report of the Federal Courts Study Committee, 79 (April 2, 1990). 295

Id. at 80-81. The study has been endorsed by the Senate Judiciary Committee; 296

see supra note 269.

91

trial. Some judicial officers had interpreted that provision as barring them from reminding parties that

they may consent to have a civil matter referred to a magistrate judge because of concerns that parties

would be coerced to accept such references.

Section 308(a) also amended § 636(c)(2) regarding communications by clerks of court with

the parties concerning their option to consent to a magistrate judge's civil jurisdiction. The first

sentence in subsection (2) formerly read, "the clerk of court shall, at the time the action is filed, notify

the parties of their right to consent to the exercise of such jurisdiction." (emphasis added). The new

amendment replaced the underlined language with "the availability of a magistrate to exercise."

(3) Extension of Terms of Office

Section 308(b) amended 28 U.S.C. § 631(f) in order to lengthen the "hold over" period from

60 days to 180 days, during which a court may retain a magistrate judge in office after expiration of

his or her term. This amendment allows a magistrate judge to continue to perform duties after his or

her term has expired for a period of 180 days or until a successor can be appointed, whichever is

earlier. The continuation of service must still be approved by a majority of the judges of the

appointing district court and by the judicial council of the circuit.

19. Judicial Conference Study on Magistrate Judge Authority

In its comprehensive review of the federal judiciary in 1990, the Federal Courts Study

Committee concluded: "The district courts clearly need the assistance of the magistrates in order for

the judges to focus on those matters that require Article III attention." The Committee determined, 295

however, that confusion over the constitutional and statutory authority of magistrate judges had made

some courts reluctant to take full advantage of the magistrate judge system. In particular, the farreaching 1976 and 1979 jurisdictional amendments to the Federal Magistrates Act had raised

questions regarding the limits on the authority of the courts to refer certain types of proceedings to

magistrate judges.

The Federal Courts Study Committee recommended that a comprehensive jurisdictional

review be undertaken of the duties assigned to magistrate judges, together with a catalog of pertinent

statutory and case law citations and an analysis of the legislative history of the Federal Magistrates

Act. In response, the Judicial Conference authorized its Committee on the Administration of the 296

Magistrate Judges System to oversee the study. The Magistrate Judges Division of the Administrative

Office conducted the study under the supervision of a special subcommittee of the Magistrate Judges

Committee.
297 Pub. L. 102-572, 106 Stat. 4506 (1992).

92

The first part of the study, the Inventory of United States Magistrate Judges Duties, was first

distributed in December 1991 and has been periodically updated since then. It provides district courts

with a quick guide to the types of duties that magistrate judges may perform under statutory and case

law. The second part of the study, A Constitutional Analysis of Magistrate Judge Authority, was

published in June 1993, and was reprinted at 150 F.R.D. 247 (1993). It analyzes various Supreme

Court and circuit court opinions examining the constitutional limits of magistrate judge authority.

It also reviews pertinent Supreme Court opinions discussing the authority of other non-Article III

judicial officers, including bankruptcy judges.

This publication, A Guide to the Legislative History of the Federal Magistrate Judges System,

constitutes the legislative analysis of the Federal Magistrates Act recommended by the Federal Courts

Study Committee. 

20. Federal Courts Administration Act of 1992

The Federal Courts Administration Act of 1992 was signed by President Bush on October 297

29, 1992. Title I of that legislation implemented certain recommendations of the Federal Courts

Study Committee. Title II contained significant amendments to the Judicial Survivors' Annuities

System. Other titles made various changes in judicial financial administration, jury selection in

federal courts, and other miscellaneous matters. The Act amended the Federal Magistrates Act and

contained other provisions which directly affected the magistrate judges system.

a. Implementation of Federal Courts Study Committee Recommendations

Section 103 of the Act amended 18 U.S.C. § 3401 to add a new subsection (h) granting

magistrate judges the power to modify, revoke, or terminate supervised release of any person

sentenced to a term of supervised release by a magistrate judge. This provision overturns United

States v. Williams, 919 F.2d 266 (5th Cir. 1990), which held that a magistrate judge lacked authority

to revoke or modify the supervised release of a defendant the magistrate judge had sentenced.

Section 103 also amends § 3401(d) to grant magistrate judges the power to modify the terms

of probation imposed by a magistrate judge. Magistrate judges already had statutory authority to

revoke or reinstate such probation. Although many magistrate judges had routinely conducted both

preliminary and final probation revocation proceedings under the authority of 28 U.S.C. § 636(b)(3),

some circuit courts had held that Congress did not intend to permit the assignment of final probation

revocation functions to magistrate judges.

Section 103 also added a new subsection (I) to § 3401 specifically allowing district judges to

designate magistrate judges to conduct hearings (including evidentiary hearings) to modify, revoke,

or terminate supervised release terms and to submit proposed findings of fact and recommendations,

including, in the case of revocation, a recommended sentence. The legislative history indicates that
298 Pub.L. No. 104-317, 110 Stat. 3847 (1996).

S. REP. NO. 366, 104 Cong., 2d Sess. 26-27 (1996), reprinted in 1996 299 th

U.S.C.C.A.N. 4202, 4206.

S. REP. NO. 366, 104 Cong., 2d Sess. 28 (1996), reprinted in 1996 300 th

U.S.C.C.A.N. 4202, 4207.

93

the proposed recommendations are to be submitted in accordance with 28 U.S.C. § 636(b)(1)(B),

enabling the district judge to make a de novo review. 

21. Federal Courts Improvement Act of 1996

On October 19, 1996, the President signed into law the Federal Courts Improvement Act of

1996. The Act included many provisions related to the judicial process, judiciary personnel

298

administration and benefits, judicial financial administration, and miscellaneous matters. The law

also contained amendments to the Federal Magistrates Act and other provisions directly affecting the

magistrate judges system, as described below.

a. Civil Consent Authority in Emergency Assignments

Section 201 of the Act amended 28 U.S.C. § 636(f) to authorize a magistrate judge who is

serving on a temporary emergency assignment in another district under 28 U.S.C. § 636(f) to try cases

with consent in that district. This provision corrected a drafting oversight when the civil consent

statute was enacted in 1979 that failed to include consent authority among the powers and duties of

magistrate judges on inter-district assignment.299

b. Consent Requirement in Misdemeanor Cases

Generally, before enactment of the Act, magistrate judges could not try any misdemeanor petty

offense cases without the defendant’s consent. See § 3(e)(2), supra. Section 202 of the Act

eliminated this requirement for petty offense infractions, Class C misdemeanors, and Class B

misdemeanors charging a motor vehicle offense. The Senate Judiciary Committee found that “the

Federal magistrate judge system is mature and well equipped to provide a fair and effective means

for processing petty offense cases without resort to an article III judge.” The original language of 300

the proposed legislation would have eliminated the consent requirement in all petty offense cases.

However, the continuance of the consent requirement for Class B misdemeanor offenses other than

those charging motor vehicle offenses in the enacted legislation was the result of a compromise with

minority opposition in the House to abrogation of consent in all petty offense cases.

This section further amended 18 U.S.C. § 3401(b) to provide that in the misdemeanor cases

in which the defendant’s consent to a magistrate judge is still required, the consent may be given
For a description of Judicial Conference actions on the issue of consent in petty 301

offense cases, see § 17(a)2, supra

S. REP. NO. 366, 104 Cong., 2d Sess. 31 (1996), reprinted in 1996 302 th

U.S.C.C.A.N. 4202, 4211.

303 Fed. R. Civ.P. 73 advisory committee’ s note.

304 Pub. L. No. 106-518, 114 Stat. 2410 (2000).

94

either in writing or orally on the record.301

The Act also amended 18 U.S.C. § 3401(g) to eliminate the requirement that a juvenile

defendant consent to magistrate judge jurisdiction in petty offense cases involving an infraction, a

Class C misdemeanor, or a Class B misdemeanor charging a motor vehicle offense. Before the Act,

magistrate judges were not able to try any misdemeanor petty offense cases involving a juvenile

defendant without the juvenile’s consent. See generally § 16(c), supra. 

c. Elimination of Optional Appeal Route to District Court in Civil Consent Cases

Under prior law, parties that had consented to the case-dispositive authority of a magistrate

judge in a civil case had the option to appeal the judgment directly to the court of appeals or, with the

parties’ agreement, to a district judge. Section 207 of the 1996 Act amended subsections (c) and (d)

of 28 U.S.C. § 636 to abolish the optional appeal to a district judge, retaining the court of appeals as

the sole route of appeal. The Senate Report accompanying the legislation noted that the optional

route of appeal was “inconsistent with the principle underlying the consent authority of magistrate

judges — that the parties agree to disposition of their case without involving a district judge.” 302

Rule 73 of the Federal Rules of Civil Procedure, which sets forth procedures for civil consent

proceedings, was modified on April 11, 1997 (effective December 1, 1997), to conform to the

statutory changes in the route of appeal. At the same time, Rules 74, 75, and 76 were abrogated for

the same reason.303

d. Magistrate Judge on Federal Judicial Center Board

Section 601 of the Act amended 28 U.S.C. § 621 to include a magistrate judge on the Board

of the Federal Judicial Center. 

22. Federal Courts Improvement Act of 2000

On November 13, 2000, the President signed into law the Federal Courts Improvement Act

of 2000. Among its provisions, the new law amended the Federal Magistrates Act to eliminate the 304

consent requirement in all Class B misdemeanor cases, to expand magistrate judge authority in cases
Prior law prohibited magistrate judges from imposing a term of imprisonment 305

on a juvenile defendant in a misdemeanor case. See generally § 16(c).

For a fuller discussion of the history of magistrate judge contempt authority see 306

§ 17(a)(1), infra.

95

involving juveniles, to provide for the authorization of magistrate judge positions in Guam and the

Northern Mariana Islands, and to expand the contempt authority of magistrate judges. 

a. Consent to Trial in All Petty Offense Cases

Section 636(a) of Title 28 and 18 U.S.C. § 3401(b) were amended to expand the authority of

magistrate judges to try all petty offense cases without defendant’s consent. Prior law only allowed

magistrate judges to dispose of all infractions, Class C misdemeanors and Class B misdemeanors

charging a motor vehicle offense without the defendant’s consent. See § 21(b), supra. However, the

Act did not change the requirement that a defendant must consent to magistrate judge jurisdiction to

dispose of a Class A misdemeanor.

b. Magistrate Judge Authority in Juvenile Cases

Section 203 of the Act expanded magistrate judge authority in juvenile cases by amending 18

U.S.C. § 3401(g) to permit magistrate judges to preside over Class A misdemeanor cases involving

juvenile defendants with the juvenile’s consent, and to provide magistrate judges with authority to

sentence juvenile defendants to terms of imprisonment in misdemeanor cases, which they were not

authorized to do previously. In essence, the Act provided magistrate judges with the same authority 305

over juvenile defendants as they have over adult defendants, i.e., theymay preside in all petty offense

cases without the juvenile defendant’s consent and they may preside in Class A misdemeanor cases

with the juvenile defendant’s consent.

c. Authority for Magistrate Judge Positions in Guam and the Northern Mariana

Islands

Section 201 of the Act amended the Federal Magistrates Act to allow the Judicial Conference

to establish magistrate judge positions in the district courts of Guam and the Northern Mariana

Islands. 

d. Contempt Authority for Magistrate Judges

The statute governing the contempt authority of magistrate judges, 28 U.S.C. § 636(e), was

amended significantly by Section 202 of the Federal Courts Improvement Act of 2000 as follows: 306
See also 307 28 U.S.C. § 636(e).

96

(1) Summary Criminal Contempt Authority

Section 202 of the Act gave magistrate judges “summary criminal contempt authority” to

punish “by fine or imprisonment such contempt of authority of such magistrate judge constituting

misbehavior of any person in the magistrate judge’s presence so as to obstruct the administration of

justice.” The limited penalties magistrate judges may impose for summary criminal contempt are set

forth in subsection (4), infra.

(2) Criminal Contempt Authority in Civil Consent Misdemeanor Cases

Section 203 gave magistrate judges additional criminal contempt authority in their civil

consent cases under 28 U.S.C. § 636(c) and in misdemeanor cases under 18 U.S.C. § 3401. The

section provided magistrate judges with criminal contempt authority to punish misbehavior occurring

outside their presence that constitutes disobedience or resistence to the magistrate judges’ lawful writ,

process, order, rule, decree, or command in civil consent and misdemeanor cases over which they

preside. The criminal contempt authority was 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 the

magistrate judge.

The section further required that the disposition of such contempt must be conducted upon

notice and hearing under the Federal Rules of Criminal Procedure. The penalties magistrate judges

may impose for criminal contempt proceedings in these circumstances are set forth in subsection (4),

infra.

307

(3) Civil Contempt Authority in Civil Consent and Misdemeanor Cases

Section 203 authorizes magistrate judges to exercise civil contempt authority in civil cases

in which they preside with the consent of the parties pursuant to 28 U.S.C. § 636(c), and in

misdemeanor cases proceeding before them under 18 U.S.C. § 3401. In such cases, the magistrate

judge may exercise civil contempt authority identical to the civil contempt authorityof a district judge

to order sanctions pursuant to any other statute, the Federal Rules of Civil Procedure, or the Federal

Rules of Criminal Procedure.

(4) Criminal Contempt Penalties

For a summary criminal contempt committed in the magistrate judge’s presence, or for a

criminal contempt occurring outside the magistrate judge’s presence in a civil consent or

misdemeanor case, the magistrate judge may impose penalties up to thirty (30) days incarceration,

and/or a $5,000 fine. However, in the event that the magistrate judge believes that the punishment

should be more severe, § 636(e)(6) allows him or her to certify the contempt to the district judge for

further contempt proceedings. 
See 308 28 U.S.C. § 636(e)(7).

309 Pub. L. No. 110-177, 121 Stat. 2534 (2008).

97

(5) Appeals of Magistrate Judge Contempt Orders

Section 202(e)(7) of the Act provides that an appeal of a contempt order issued by a 308

magistrate judge in a any civil case in which the magistrate judge presides with consent of the parties

shall be made to the court of appeals. In all other cases, the appeal of any other order of contempt

issued by a magistrate judge must be made to the district court. The statute thus followsthe principle

that an appeal of a magistrate judge’s contempt order should be heard by the same court that hears

the appeal of the final order on the merits of the case or proceeding. 

23. Court Security Improvement Act of 2007

On January 7, 2008, the President signed into law the “Court Security Improvement Act of

2007.” The Act included three sections (502, 503 and 504) affecting magistrate judges. The first

309

section, 502, extended to active full-time magistrate judges age 65 and over and retired under 28

U.S.C. § 377, the Judicial Retirement System (JRS), the same Federal Employees’ Group Life

Insurance (FEGLI) benefits enjoyed by Article III judges. The other two sections of the Act amended

two statutes related to the participation of senior district judges in court governance generally and in

the appointment of United States magistrate judges.

a. FEGLI Provisions

Section 502 extended to active full-time United States magistrate judges age 65 and over and

full-time magistrate judges retired under the JRS, the same FEGLI benefits, including the FEGLI fix,

enjoyed by Article III judges and judges of the Court of Federal Claims (see generally § 2.16(g),

supra). As a result, effective February 1, 2008, the rate for FEGLI Option B-Additional coverage for

magistrate judges age 65 and over was fixed at the monthly rate that was in effect before the Office

of Personnel Management implemented new age bands on January 1, 2003 (or $1.517 per $1,000 of

coverage).

In addition to the FEGLI Option B premium “fix,” the new law provided that retired JRS

annuitants, including “hybrid” annuitants (who combine a JRS annuity with a CSRS or FERS

annuity), are deemed “employees” for life insurance purposes. As a result, as of February 1, 2008,

these retired judges pay the employee rate for Basic Life insurance coverage rather the rate of an

annuitant for the same coverage. By treating magistrate judges as Article III judges for life insurance

purposes, it also eliminated the requirement that any new or increased coverage be in effect for five

years prior to retirement to continue the insurance into retirement. In addition, retired JRS and hybrid

JRS annuitants were given the right to increase life insurance coverage by showing evidence of

insurability or enrolling during an open season.
Under prior law, senior judges did not have a statutory or regulatory right to

310

vote on the appointment of magistrate judges in their districts. The Judicial

Conference official position, taken in 1959, was that a district court (for

purposes of appointing court officials) should consist of only active judges and

not senior judges.

98

b. Senior Judge Voting on Magistrate Judge Appointments

The first provision of the new law on senior judge voting rights, Section 503, amended 28

U.S.C. § 296 to allow senior judges who in the preceding year performed an amount of work equal

to or greater than the amount of work an average active judge performs in 6 months, may elect to

participate in the appointment of court officers and magistrate judges, rulemaking, governance, and

administrative matters. The second provision, Section 504, amended the Federal Magistrates Act, 310

28 U.S.C. § 631(a), to allow all senior judges, in addition to all active district judges, to appoint

magistrate judges. 

As is evident, these provisions are inconsistent with one another in regard to participation in

magistrate judge appointments. Section 503 specifically restricts senior judge participation in court

governance, including the appointment of magistrate judges, to those senior judges whose

performance of judicial duties has met or exceeded what an average active judge on the court would

perform in six months. It also provides that only those senior judges who elect to exercise such

powers may do so. The second amendment confersthe right to vote on the appointment of magistrate

judges on all senior district judges in their respective courts, and does not provide any requirement

for a senior judge to elect to exercise that power.

At its June 2008 meeting, the Magistrate Judges Committee was advised that the Court

Administration and Case Management Committee (CACM Committee) had agreed to recommend

that the Judicial Conference seek legislation to repeal Section 504. The Committee voted to support

the CACM Committee’s recommendation to seek repeal of this section. In addition, at its June 2008

meeting, the Magistrate Judges Committee agreed to recommend that the Judicial Conference amend

the Regulations of the Judicial Conference of the United States Establishing Standards and Procedures

for the Appointment and Reappointment of United States Magistrate Judges by removing the word

“active” from “active district judges” to make clear that references to district judges include active

district judges and senior district judges. It also recommended that a note be added to the introduction

to the selection and appointment regulations explaining that there is a conflict in the law regarding

senior judges’ involvement in the appointment of magistrate judges. 

The Judicial Conference approved the Committee’s recommendation at its September 2008

session. The Conference-approved language in the introduction to the regulations now reads as

follows:
99

References to district judges in . . . these regulations include all active district judges

and, as determined by the court, either all senior judges or those senior judges who

performed in the preceding calendar year an amount of work equal to or greater than

the amount of work an average judge in active service on that court would perform in

six months, and who elect to exercise such powers. [Ed. Note: There is a conflict in

the law as it relates to senior judges voting on the appointment of magistrate judges.

See 28 U.S.C. §§ 296 and 631(a), as amended January 7, 2008. The Executive

Committee, on behalf of the Judicial Conference, is seeking the repeal of section 504

of the Court Security Improvement Act of 2007, which amended 28 U.S.C. § 631(a)

to allow all senior judges to participate in the appointment of magistrate judges.]

At its June 2008 meeting, the CACM Committee also recommended that the Judicial

Conference issue guidance that courts follow the provisions of section 503. The Judicial Conference

at its September 2008 session adopted the recommendation of the CACM Committee and agreed to

issue the following guidance:

(a) the 50 percent workload requirement for senior judges set forth in section 503

should apply to governance activities (including appointing magistrate judges) while

legislative repeal of section 504 is being sought; and (b) the 50 percent workload

requirement should be based on the amount of work actually performed by a senior

judge within the district, but that courts, at their discretion, may include work

performed by the senior judge outside the district to assist courts in need.

JCUS-SEP 08, p. 12.

Unless and until Section 504 is repealed, both amendments remain in effect. Although the

guidance issued by the Judicial Conference is to follow Section 503, the Administrative Office will

accept appointment decisions under either section. 
100

ATTACHMENT A

LEGISLATIVE HISTORY OF THE FEDERAL MAGISTRATES ACT

1. The Federal Magistrates Act of 1968.

Pub. L. No. 90-578; 82 Stat. 1107

!Senate Report No. 371 (June 28, 1967)

!House Report No. 1629 (July 3, 1968)

1968 U.S.C.C.A.N. 4252

!Passed Senate: June 29, 1967 and Oct. 3, 1968

!Passed House: Sept. 26, 1968

Signed: Oct. 17, 1968

2. Temporary Assignment of Magistrates Legislation

Pub. L. No. 92-239; 86 Stat. 47

!Senate Report No. 617 (Feb. 16, 1972)

1972 U.S.C.C.A.N. 1981

!House Report No. 582 (Oct. 21, 1971)

!Passed House: Nov. 1, 1971

!Passed Senate: Feb. 18, 1972

Signed: March 1, 1972

3. 1972 Salary Legislation

Pub. L. No. 92-428; 86 Stat. 721

!House Report No. 1037 (May 2, 1972)

!Senate Report No. 1065 (Aug. 16,1972)

1972 U.S.C.C.A.N. 3350

!Passed House: May 16 and Sept. 12, 1972

!Passed Senate: Aug. 18, 1972

Signed: Sept. 21, 1972

4. 1976 Jurisdictional Amendments

Pub. L. No. 94-577; 90 Stat. 2729

!Senate Report No. 625 (Feb. 3, 1976)

!House Report No. 1609 (Sept. 17,1976)

1976 U.S.C.C.A.N. 6162

!Passed Senate: Feb. 5 and Oct. 1, 1976

!Passed House: Oct. 1, 1976

Signed: Oct. 21, 1976
101

5. Adjustment of Salaries and Positions for the Virgin Islands

Pub. L. 94-520; 90 Stat. 2458

!Senate Report No. 624 (Feb. 3, 1976)

!House Report No. 1607 (Sept. 17, 1976)

1976 U.S.C.C.A.N. 5458

!Passed Senate: Feb. 5 and Sept. 30, 1976

!Passed House: Sept. 29, 1976

Signed: Oct. 17, 1976

6. Prisoner Transfer Legislation of 1977

Pub. L. No. 95-144; 91 Stat. 1212

!Senate Report No. 435 (Sept. 15, 1977)

!House Report No. 720 (Oct. 19, 1977)

1977 U.S.C.C.A.N. 3146

!Passed Senate: Sept. 21, 1977

!Passed House: Oct. 25, 1977

Signed: Oct. 28, 1977

7. Bankruptcy Reform Act of 1978

Pub. L. No. 95-598; 92 Stat. 2549

!House Report No. 595 (Sept. 8, 1977) (Judiciary Committee)

1978 U.S.C.C.A.N. 5963

!Senate Report No. 989 (July 14, 1978) (Judiciary Committee)

1978 U.S.C.C.A.N. 5787

!Passed House: Feb. 1, Sept. 28, and Oct. 6, 1978

!Passed Senate: Sept. 7, Sept. 22, and Oct. 5, 1978

Signed: Nov. 6, 1978

8. The Federal Magistrate Act of 1979

Pub. L. No. 96-82; 93 Stat. 643

95th Congress

!Senate Report No. 344 (July 14, 1977)

!House Report No. 1364 (July 17, 1978)

96th Congress

!Senate Report No. 74 (April 24, 1979)

1979 U.S.C.C.A.N. 1469
102

!House Report No. 287 (June 20, 1979)

!Senate Conference Report No. 322 (Sept. 18, 1979)

!House Conference Report No. 444 (Sept. 19, 1979)

1979 U.S.C.C.A.N. 1487

!Passed Senate: May 2 and Sept. 20, 1979

!Passed House: June 26 and Sept. 28, 1979

Signed: Oct. 10, 1979

9. 1982 Qualifications Amendment

Pub. L. No. 97-230, 96 Stat. 255

!Passed Senate: June 30, 1982

!Passed House: July 23, 1982

Signed: August 6, 1982

10. Bail Reform Act of 1984

Pub. L. No. 98-473, 98 Stat. 1837

!Passed Senate: Sept. 27-29, Oct. 1-4, and Oct. 11, 1984

!Passed House: Sept. 25 and Oct. 10, 1984

Signed: Oct. 12, 1984

11. 1986 Qualifications Amendment

Pub. L. No. 99-651, 100 Stat. 3642

!Passed Senate: Oct. 6 and Oct. 16, 1986

!Passed House: Dec. 9, 1985, and Oct. 15, 1986

Signed: Nov. 14, 1986

12. Retirement and Survivors' Annuities For Bankruptcy Judges and Magistrates Act of

1988

Pub. L. No. 100-659, 102 Stat. 3910

Signed: Nov. 15, 1988

13. Anti-Drug Abuse Act of 1988

Pub. L. No. 100-690, 102 Stat. 4181

Signed: Nov. 18, 1988

14. Judicial Improvements and Access to Justice Act of 1988

Pub. L. No. 100-702, 102 Stat. 4642
103

Signed: Nov. 19, 1988

15. 1989 Qualifications Amendment

Pub. L. No. 101-45, 103 Stat. 97

!Passed Senate: May 18 and June 22, 1989

!Passed House: May 18, May 24, and June 23, 1989

Signed: June 30, 1989

16. Ethics Reform Act of 1989

Pub. L. No. 101-194, 103 Stat. 1716

!Passed Senate: Nov. 17, 1989

!Passed House: Nov. 16 and Nov. 17, 1989

Signed: Nov. 28, 1989

17. Judicial Improvements Act of 1990

Pub. L. No. 101-650, 104 Stat. 5089

!Senate Report No. 416 (Aug. 3, 1990)

1990 U.S.C.C.A.N. 6802

!House Report No. 734 (Sept. 21, 1990)

1990 U.S.C.C.A.N. 6860

!Passed Senate: Oct. 27, 1990

!Passed House: Sept. 27 and Oct. 27, 1990

Signed: Dec. 1, 1990

18. Federal Courts Administration Act of 1992

Pub. L. No. 102-572; 106 Stat. 4506

!Senate Report No. 342 (July 27, 1992)

!House Report No. 1006 (Oct. 3, 1992)

1992 U.S.C.C.A.N. 3921

!Passed Senate: Aug. 3 and Oct. 7, 1992

!Passed House: Oct. 3, 1992

Signed: Oct. 29, 1992

19. Federal Courts Improvement Act of 1996

Pub. L. No. 104-317; 110 Stat. 3847

!Senate Report No. 366 (Sept. 9, 1996)

1996 U.S.C.C.A.N. 4202

!House Report No. 798 (Sept. 17, 1996)
104

!Passed Senate: Oct. 3, 1996

!Passed House: Sept. 17 and Oct. 4, 1996

Signed: Oct. 19, 1996 

20. Federal Courts Improvement Act of 2000

Pub.L. No. 106-518; 114 Stat. 2410

!House Report No. 112 (Sept. 9, 1999)

!Passed Senate: Oct. 19, 2000 and October 27, 2000

!Passed House: Oct. 25, 2000

Signed: Nov. 13, 2000 

21. Court Security Improvement Act of 2007

Pub.L. No. 110-177; 121 Stat. 2534

!House Report No. 2l8 (July 10, 2007)

!Passed House: July 10, 2007 and Dec. 17, 2007

!Passed Senate: Dec. 17, 2007

Signed: Jan. 7, 2008 
105

ATTACHMENT B

TEXT AND AMENDMENTS TO 28 U.S.C. § 636

The authority to exercise certain powers as federal judicial officers is provided to magistrate

judges primarily by 28 U.S.C. § 636. The original text of the section and to its amendments is

provided here in the official slip law format. The text and amendments to other sections of the

Federal Magistrates Act or to the federal rules have not been included.

1. Federal Magistrates Act of 1968, Pub. L. No. 90-578, 82 Stat. 1107

"§ 636. Jurisdiction and powers

"(a) Each United States magistrate serving under this chapter shall have within the territorial

jurisdiction prescribed by his appointment--

"(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;

"(2) the power to administer oaths and affirmations, impose conditions of release under section

3146 of title 18, and take acknowledgments, affidavits, and depositions; and

"(3) the power to conduct trials under section 3401, title 18, United States Code, in conformity

with and subject to the limitations of that section.

"(b) Any district court of the United States, by the concurrence of a majority of all the judges of

such district court, may establish rules pursuant to which any full-time United States magistrate, or,

where there is no full-time magistrate reasonable available, any part-time magistrate specially

designated by the court, may be assigned within the territorial jurisdiction of such court such

additional duties as are not inconsistent with the Constitution and laws of the United States. The

additional duties authorized by rule may include, but are not restricted to--

"(1) service as a special master in an appropriate civil action, pursuant to the applicable

provisions of this title and the Federal Rules of Civil Procedure for the United States district

courts;

"(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or

criminal actions; and

"(3) preliminary review of applications for posttrial relief made by individuals convicted of

criminal offenses, and submission of a report and recommendations to facilitate the decision of

the district judge having jurisdiction over the case as to whether there should be a hearing.

"(c) The practice and procedure for the trial of cases before officers serving under this chapter,

and for the taking and hearing of appeals to the district courts, shall conform to rules promulgated by

the Supreme Court pursuant to section 3402 of title 18, United States Code.

"(d) In a proceeding before a magistrate, any of the following acts or conduct shall constitute a

contempt of the district court for the district wherein the magistrate is sitting: (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
106

to be examined according to law; or (5) any other act or conduct which if committed before a judge

of the district court would constitute contempt of such court. Upon the commission of any such act

or conduct, the magistrate shall forthwith certify the facts to a judge of the district court and may

serve or cause to be served upon any person whose behavior is brought into question under this

section 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. A judge

of the district court shall thereupon, in a summary manner, hear the evidence as to the act or conduct

complained of and, if it is such as to warrant punishment, punish such person in the same manner and

to the same extent as for a contempt committed before a judge of the court, or commit such person

upon the conditions applicable in the case of defiance of the process of the district court or

misconduct in the presence of a judge of that court.

2. 1972 Temporary Assignment of Magistrates Legislation, Pub. L. No. 92-239,

86 Stat. 47

[S]ection 636 of title 28, United States Code, is amended by adding at the end thereof the following

new subsection:

"(e) In an emergency and upon the concurrence of the chief judges of the districts involved, a

United States magistrate may be temporarily assigned to perform any of the duties specified in

subsection (a) or (b) of this section in a judicial district other than the judicial district for which he

has been appointed. No magistrate shall perform any of such duties in a district to which he has been

temporarily assigned until an order has been issued by the chief judge of such district specifying (1)

the emergency by reason of which he has been transferred, (2) the duration of his assignment, and (3)

the duties which he is authorized to perform. A magistrate so assigned shall not be entitled to

additional compensation but shall be reimbursed for actual and necessary expenses incurred in the

performance of his duties in accordance with section 635."

Sec. 2. The section heading of section 636 of title 28, United States Code, is amended to read as

follows:

"§ 636. Jurisdiction, powers, and temporary assignment."

Sec. 3. The item relating to section 636 in the section analysis of chapter 43 of title 28, United States

Code, is amended to read as follows:

"§ 636. Jurisdiction, powers, and temporary assignment."

3. 1976 Jurisdictional Amendments, Pub. L. No. 94-577, 90 Stat. 2729

[S]ection 636(b) of title 28, United States Code, is amended to read as follows:

"(b)(1) Notwithstanding any provision of law to the contrary--

"(A) a judge may designate a magistrate to hear and determine any pretrial matter pending

before the court, except a motion forinjunctive relief, for judgment on the pleadings, for summary

judgement, to dismiss or quash an indictment or information made by the defendant, to suppress

evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for

failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action.
107

A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has

been shown that the magistrate's order is clearly erroneous or contrary to law.

"(B) a judge may also designate a magistrate 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.

"(C) the magistrate shall file his proposed findings and recommendations under subparagraph

(B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being

served with a copy, any partymay serve and file written objections to such proposed findings and

recommendations as provided by rules of court. 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.

"(2) A judge may designate a magistrate 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.

"(3) A magistrate may be assigned such additional duties as are not inconsistent with the

Constitution and laws of the United States.

"(4) Each district court shall establish rules pursuant to which the magistrates shall discharge

their duties."

4. 1977 Prisoner Transfer Legislation, Pub. L. No. 95-144, 91 Stat. 1212, 1220

Sec. 2. That section 636 of title 28, United States Code, is amended by adding a subsection (f) as

follows:

"(f) A United States magistrate may perform the verification function required by section 4107

of title 18, United States Code. A magistrate may be assigned by a judge of any United States district

court to perform the verification required by section 4108 and the appointment of counsel authorized

by section 4109 of title 18, United States Code, and may perform such functions beyond the territorial

limits of the United States. A magistrate assigned such functions shall have no authority to perform

any other function within the territory of a foreign country.".

5. The Federal Magistrate Act of 1979, Pub. L. No. 96-82, 93 Stat. 643.

[T]his Act may be cited as the "Federal Magistrate Act of 1979".

Sec. 2. Section 636 of title 28, United States Code, is amended--

(1) by redesignating subsections (c) through (f) thereof as subsections (d) through (g),

respectively; and

(2) by inserting immediately after subsection (b) thereof the following new subsection:
108

"(c) Notwithstanding any provision of law to the contrary--

"(1) Upon the consent of the parties, a full-time United States magistrate or a part-time United

States magistrate who serves as a full-time judicial officer may conduct any or 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. Upon the consent

of the parties, pursuant to their specific written request, any other part-time magistrate may

exercise such jurisdiction, if such magistrate 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 is not

reasonably available in accordance with guidelines established by the judicial council of the

circuit. When there is more than one judge of a district court, designation under this paragraph

shall be by the concurrence of a majority of all the judges of such district court, and when there

is no such concurrence, then by the chief judge.

"(2) If a magistrate is designated to exercise civil jurisdiction under paragraph (1) of this

subsection, the clerk of court shall, at the time the action is filed, notify the parties of their right

to consent to the exercise of such jurisdiction. The decision of the parties shall be communicated

to the clerk of court. Thereafter, neither the district judge nor the magistrate shall attempt to

persuade or induce any party to consent to reference of any civil matter to a magistrate. Rules of

court for the reference of civil matters to magistrates shall include procedures to protect the

voluntariness of the parties' consent.

"(3) Upon entry of judgment in any case referred under paragraph (1) of this subsection, an

aggrieved party may appeal directly to the appropriate United States court of appeals from the

judgment of the magistrate in the same manner as an appeal from any other judgment of a district

court. In this circumstance, the consent of the parties allows a magistrate designated to exercise

civil jurisdiction under paragraph (1) of this subsection to direct the entry of a judgment of the

district court in accordance with the Federal Rules of Civil Procedure. Nothing in this paragraph

shall be construed as a limitation of any party's right to seek review by the Supreme Court of the

United States.

"(4) Notwithstanding the provisions of paragraph (3) of this subsection, at the time of reference

to a magistrate, the parties may further consent to appeal on the record to a judge of the district

court in the same manner as on an appeal from a judgment of the district court to a court of

appeals. Wherever possible the local rules of the district court and the rules promulgated by the

conference shall endeavor to make such appeal expeditious and inexpensive. The district court

may affirm, reverse, modify, or remand the magistrate's judgment.

"(5) Cases in the district courts under paragraph (4) of this subsection may be reviewed by the

appropriate United States court of appeals upon petition for leave to appeal by a party stating

specific objections to the judgment. Nothing in this paragraph shall be construed to be a

limitation on any party's right to seek review by the Supreme Court of the United States.

"(6) The court may, for good cause shown on its own motion, or under extraordinary

circumstances shown by any party, vacate a reference of a civil matter to a magistrate under this

subsection.

"(7) The magistrate shall determine, taking into account the complexity of the particular matter

referred to the magistrate, whether the record in the proceeding shall be taken, pursuant to section

753 of this title, by electronic sound recording means, by a court reporter appointed or employed
109

by the court to take a verbatim record by shorthand or by mechanical means, or by an employee

of the court designated by the court to take such a verbatim record. Notwithstanding the

magistrate's determination,(A) the proceeding shall be taken down by a court reporter if any party

so requests, (B) the proceeding shall be recorded by a means other than a court reporter if all

parties so agree, and (C) no record of the proceeding shall be made if all parties so agree.

Reporters referred to in this paragraph may be transferred for temporary service in any district

court of the judicial circuit for reporting proceedings under this subsection, or for other reporting

duties in such court.".

6. 1986 Criminal Justice Act Revision, Pub. L. No. 99-651, 100 Stat. 3646-48

Sec. 201. Recall of Certain Retired Judicial Officers

(a) MAGISTRATES.--(2) Section 636 of title 28, United States Code, is amended by adding at

the end the following:

"(h) A United States magistrate who has retired may, upon the consent of the chief judge of the

district involved, be recalled to serve as a magistrate in any judicial district by the judicial council of

the circuit within which such district is located. Upon recall, a magistrate may receive a salary for

such service in accordance with regulations promulgated by the Judicial Conference, subject to the

restrictions on the payment of an annuity set forth in subchapter III of chapter 83, and chapter 84, of

title 5. The requirements set forth in subsections (a), (b)(3), and (d) of section 631, and paragraph (1)

of subsection (b) of such section to the extent such paragraph requires membership of the bar of the

location in which an individual is to serve as a magistrate, shall not apply to the recall of a retired

magistrate under this subsection or section 375 of this title. Any other requirement set forth in section

631(b) shall apply to the recall of a retired magistrate under this subsection or section 375 of this title

unless such retired magistrate met such requirement upon appointment or reappointment as a

magistrate under section 631.".

7. Bail Reform Act of 1984, Pub. L. No. 98-473, Title II, 98 Stat. 1985, 1986

Sec. 208. Section 636 of title 28, United States Code, is amended by striking out "impose conditions

of release under section 3146 of title 18" and inserting in lieu thereof "issue orders pursuant to section

3142 of title 18 concerning release or detention of persons pending trial".

8. Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4467

Sec. 7322. SENTENCING JURISDICTION.

Section 636(a) of title 28, United States Code, is amended by--

(1) striking out "and" at the end of paragraph (2);

(2) striking out the period at the end of paragraph (3) and inserting in lieu thereof ",and"; and

(3) adding at the end thereof the following paragraph;

"(4) the power to enter a sentence for a misdemeanor or infraction with the consent of the

parties.".
110

9. Judicial Improvements and Access to Justice Act of 1988, Pub. L. No. 100-702, Title IV,

Title X, 102 Stat. 4642

Sec. 404. CONFORMING AND OTHER TECHNICAL AMENDMENTS.

(b) CONFORMING AMENDMENTS RELATING TO MAGISTRATES.--(1) Section 636(d)

is amended by striking out "section 3402 of title 18, United States Code" and inserting in lieu thereof

"section 2072 of this title".

Sec. 1014. METHOD OF RECORDING.

Paragraph (7) of section 636(c) is amended to read as follows:

"(7) The magistrate shall, subject to guidelines of the Judicial Conference, determine whether

the record taken pursuant to this section shall be taken by electronic sound recording, by a court

reporter, or by other means.".

10. Federal Courts Study Committee Implementation Act, Pub. L. No. 101-650, Title III,

104 Stat. 5089

Sec. 308. MAGISTRATES. 

(a) CONSENT TO TRIAL IN CIVIL ACTIONS.--Section 636(c)(2) of title 28, United States Code, is

amended--

(1) in the first sentence, by striking out "their right to consent to the exercise of" and inserting

in lieu thereof "the availability of a magistrate to exercise"; and

(2) by striking out the third sentence and inserting in lieu thereof the following: "Thereafter,

either the district court judge or the magistrate may again advise the parties of the availability of

the magistrate, but in so doing, shall also advise the parties that they are free to withhold consent

without adverse substantive consequences."

11. Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, 110 Stat. 3847

Sec. 201.

DUTIES OF MAGISTRATE JUDGE ON EMERGENCY ASSIGNMENT. The first

sentence of section 636(f) of title 28, United States Code, is amended by – striking

out “(a) or (b)”and inserting in lieu thereof “(a), (b), or (c)”. 

Sec. 202. CONSENT TO TRIAL IN CERTAIN CRIMINAL ACTIONS. 

(a) Amendments to Title 18.--(1) Section 3401(b) of title 18, United States Code,

is amended-- 

(A) in the first sentence by inserting, “other than a petty offense that is a class

B misdemeanor charging a motor vehicle offense, a class C misdemeanor, or

an infraction,” after “misdemeanor”; 

(B) in the second sentence by inserting “judge” after “magistrate” each place

it appears; 

(C) by striking out the third sentence and inserting in lieu thereof the
111

following: “The magistrate judge may not proceed to try the case unless the

defendant, after such explanation, expressly consents to be tried before the

magistrate judge and expressly and specifically waives trial, judgment, and

sentencing by a district judge. Any such consent and waiver shall be made in

writing or orally on the record.”; and 

(D) by striking out “judge of the district court” each place it appears and

inserting in lieu thereof “district judge”. (2) Section 3401(g) of title 18, United

States Code, is amended by striking out the first sentence and inserting in lieu

thereof the following: “The magistrate judge may, in a petty offense case

involving a juvenile, that is a class B misdemeanor charging a motor vehicle

offense, a class C misdemeanor, or an infraction, exercise all powers granted

to the district court under chapter 403 of this title. The magistrate judge may,

in any other class B or C misdemeanor case involving a juvenile in which

consent to trial before a magistrate judge has been filed under subsection (b),

exercise all powers granted to the district court under chapter 403 of this title.”

(b) Amendments to Title 28.--Section 636(a) of title 28, United States Code, is

amended-- 

(1) by striking out, “and” at the end of paragraph (3) and inserting in lieu

thereof a semicolon; and 

(2) by striking out paragraph (4) and inserting the following: “(4) the power

to enter a sentence for a petty offense that is a class B misdemeanor charging

a motor vehicle offense, a class C misdemeanor, or an infraction; and (5) the

power to enter a sentence for a class A misdemeanor, or a class B or C

misdemeanor not covered by paragraph (4), in a case in which the parties have

consented.”. 

Sec. 207. APPEAL ROUTE IN CIVIL CASES DECIDED BY MAGISTRATE JUDGES WITH

CONSENT. 

Section 636 of title 28, United States Code, is amended-- 

(1) in subsection (c)-- (A) in paragraph (3) by striking out “In this circumstance, the”

and inserting in lieu thereof “The”; (B) by striking out paragraphs (4) and (5); and (C)

by redesignating paragraphs (6) and (7) as paragraphs (4) and (5); and (2) in

subsection (d) by striking out “, and for the taking and hearing of appeals to the

district courts,”. 
112

12. Federal Courts Improvement Act of 2000, Pub. L. No. 106-518, Title II, 114 Stat. 2410

Sec. 201. EXTENSION OF STATUTORY AUTHORITY FOR MAGISTRATE JUDGE

POSITIONS TO BE ESTABLISHED IN THE DISTRICT COURTS OF GUAM

AND THE NORTHERN MARIANA ISLANDS. 

Section 631 of title 28, United States Code, is amended-- 

(1) by striking the first two sentences of subsection (a) and inserting the following: “The

judges of each United States district court and the district courts of the Virgin Islands,

Guam, and the Northern Mariana Islands shall appoint United States magistrate judges

in such numbers and to serve at such locations within the judicial districts as the

Judicial Conference may determine under this chapter. In the case of a magistrate

judge appointed by the district court of the Virgin Islands, Guam, or the Northern

Mariana Islands, this chapter shall apply as though the court appointing such a

magistrate judge were a United States district court.”; and 

(2) by inserting in the first sentence of paragraph (1) of subsection (b) after

“Commonwealth of Puerto Rico,” the following: “the Territory of Guam, the

Commonwealth of the Northern Mariana Islands,”. 

Sec. 202. MAGISTRATE JUDGE CONTEMPT AUTHORITY. 

Section 636(e) of title 28, United States Code, is amended to read as follows:

(e) Contempt Authority.--

(1) In general.--A United States magistrate judge serving under this chapter shall

have within the territorial jurisdiction prescribed by the appointment of such

magistrate judge the power to exercise contempt authority as set forth in this

subsection.

(2) Summary criminal contempt authority.--A magistrate judge shall have the

power to punish summarily by fine or imprisonment such contempt of the

authority of such magistrate judge constituting misbehavior of any person in

the magistrate judge's presence so as to obstruct the administration of justice.

The order of contempt shall be issued under the Federal Rules of Criminal

Procedure. 

(3) Additional criminal contempt authority in civil consent and misdemeanor

cases.--In any case in which a United States magistrate judge presides with the

consent of the parties under subsection (c) of this section, and in any

misdemeanor case proceeding before a magistrate judge under section 3401

of title 18, the magistrate judge shall have the power to punish, by fine or

imprisonment, criminal contempt constituting disobedience or resistance to the

magistrate judge's lawful writ, process, order, rule, decree, or command.

Disposition of such contempt shall be conducted upon notice and hearing

under the Federal Rules of Criminal Procedure. 
113

(4) Civil contempt authority in civil consent and misdemeanor cases.–In any case

In which a United States magistrate judge presides with the consent of the

parties under subsection (c) of this section, and in any misdemeanor case

proceeding before a magistrate judge under section 3401 of title 18, the

magistrate judge may exercise the civil contempt authority of the district court.

This paragraph shall not be construed to limit the authority of a magistrate

judge to order sanctions under any other statute, the Federal Rules of Civil

Procedure, or the Federal Rules of Criminal Procedure. 

(5) Criminal contempt penalties.--The sentence imposed by a magistrate judge for

any criminal contempt provided for in paragraphs (2) and (3) shall not exceed

the penalties for a Class C misdemeanor as set forth in sections 3581(b)(8) and

3571(b)(6) of title 18. 

(6) Certification of other contempts to the district court.--Upon the commission

of any such act-- 

(A) in any case in which a United States magistrate judge presides with the

consent of the parties under subsection (c) of this section, or in any

misdemeanor case proceeding before a magistrate judge under section

3401 of title 18, that may, in the opinion of the magistrate judge,

constitute a serious criminal contempt punishable by penalties

exceeding those set forth in paragraph (5) of this subsection, or 

(B) in any other case or proceeding under subsection (a) or (b) of this

section, or any other statute, where-- 

(I) the act committed in the magistrate judge's presence may, in

the opinion of the magistrate judge, constitute a serious

criminal contempt punishable by penalties exceeding those set

forth in paragraph (5) of this subsection, 

(ii) the act that constitutes a criminal contempt occurs outside the

presence of the magistrate judge, or 

(iii) the act constitutes a civil contempt, the magistrate judge shall

forthwith certify the facts to a district judge and may serve or

cause to be served, upon any person whose behavior is brought

into question under this paragraph, an order requiring such

person to appear before a district judge upon a day certain to

show cause why that person should not be adjudged in

contempt by reason of the facts so certified. The district judge

shall thereupon hear the evidence as to the act or conduct

complained of and, if it is such as to warrant punishment,

punish such person in the same manner and to the same extent

as for a contempt committed before a district judge. 

(7) APPEALS OF MAGISTRATE JUDGE CONTEMPT ORDERS.--
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The appeal of an order of contempt under this subsection shall be made to the court

of appeals in cases proceeding under subsection (c) of this section. The appeal of any

other order of contempt issued under this section shall be made to the district court.''

Sec. 203. CONSENT TO MAGISTRATE JUDGE AUTHORITY IN PETTY OFFENSE

CASES AND MAGISTRATE JUDGE AUTHORITY IN MISDEMEANOR CASES

INVOLVING JUVENILE DEFENDANTS. 

(a) Amendments to Title 18.-- 

(1) Petty offense cases.--Section 3401(b) of title 18, United States Code, is

amended by striking “that is a class B misdemeanor charging a motor vehicle

offense, a class C misdemeanor, or an infraction,” after “petty offense”. 

(2) Cases involving juveniles.--Section 3401(g) of title 18, United States Code,

is amended-- 

(A) by striking the first sentence and inserting the following: “The

magistrate judge may, in a petty offense case involving a juvenile,

exercise all powers granted to the district court under chapter 403 of

this title.”; 

(B) in the second sentence by striking “any other class B or C

misdemeanor case” and inserting “the case of any misdemeanor, other

than a petty offense,”; and 

(C) by striking the last sentence. 

(b) Amendments to Title 28.--Section 636(a) of title 28, United States Code, is amended

by striking paragraphs (4) and (5) and inserting the following: 

(4) the power to enter a sentence for a petty offense; and 

(5) the power to enter a sentence for a class A misdemeanor in a case in which the

parties have consented. 

13. Court Security Improvement Act of 2007, Pub. L. No. 110-177, Title V, 121 Stat. 2534.

Sec. 502. MAGISTRATE JUDGES LIFE INSURANCE. 

(a) In General.--Section 604(a)(5) of title 28, United States Code, is amended by inserting

after “hold office during good behavior”, the following: “magistrate judges appointed

under section 631 of this title,”. 

(b) Construction.--For purposes of construing and applying chapter 87 of title 5, United

States Code, including any adjustment of insurance rates by regulation or otherwise,

the following categories of judicial officers shall be deemed to be judges of the United

States as described under section 8701 of title 5, United States Code: 

(1) Magistrate judges appointed under section 631 of title 28, United States Code.
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(2) Magistrate judges retired under section 377 of title 28, United States Code.

 (c) Effective Date.--Subsection (b) and the amendment made by subsection (a) shall apply

with respect to any payment made on or after the first day of the first applicable pay

period beginning on or after the date of enactment of this Act. 

Sec. 503. ASSIGNMENT OF JUDGES. 

Section 296 of title 28, United States Code, is amended by inserting at the end of the second

undesignated paragraph the following new sentence: “However, a district judge who has

retired from regular active service under section 371(b) of this title, when designated and

assigned to the court to which such judge was appointed, having performed in the preceding

calendar year an amount of work equal to or greater than the amount of work an average judge

in active service on that court would perform in 6 months, and having elected to exercise such

powers, shall have the powers of a judge of that court to participate in appointment of court

officers and magistrate judges, rulemaking, governance, and administrative matters.”

Sec. 504. SENIOR JUDGE PARTICIPATION IN THE SELECTION OF MAGISTRATE

JUDGES. 

Section 631(a) of title 28, United States Code, is amended by striking “Northern Mariana

Islands” the first place it appears and inserting “Northern Mariana Islands (including any

judge in regular active service and any judge who has retired from regular active service under

section 371(b) of this title, when designated and assigned to the court to which such judge was

appointed)”.