Petition for Writ of Certiorari — Kamlesh Banga, Petitioner v. Lawrence R. Lustig

Supreme Court, U.S.

FILED

DEC 0 2 2025

IN THE SUPREME COURT OF THE UNITED S3

THE CLERK

KAMLESH BANGA

Petitioner

vs.

LAWRENCE R. LUSTIG, M.D.

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO REVIEW A

JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Kamlesh Banga, Pro Se

P. O, Box 5656

Vallejo, CA 94591

(707) 342-1692

QUESTION PRESENTED

Whether a district court violates 28 U.S.C. § 636(b)(1)(C) and Article III when it adopts

a magistrate judge's recommendation through complete judicial silence—without addressing the

claim at issue or responding to timely filed specific objections supported by controlling legal

authority—thereby permitting a non-Article III officer's determination to stand as final.

i

PARTIES TO THE PROCEEDING

The only parties to the proceeding are those appearing in the caption to this petition.

ii

TABLE OF CONTENTS

QUESTION PRESENTED.........................................................................................................i

PARTIES TO THE PROCEEDING............................................................................................ ii

TABLE OF CONTENTS........................................................................................................... iii

TABLE OF AUTHORITIES...................................................................................................... v

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.................................... 1

OPINIONS BELOW.................................................................................................................... 2

JURISDICTION........................................................................................................................ 2

STATEMENT OF FACTS...................................................... .................................................... 2

I. The California State Court Proceedings................................................................................. 2

A. The Initial Lawsuit and Discovery of Concealment................................................. 2

B. The California Court of Appeal's First Decision Authorizing UCL Claims.............. 3

C. Petitioner's Compliance with the Appellate Mandate............... ................................ 4

D. The California Court of Appeal's Second Decision.................................................4

II. The Federal Proceedings....................................................................................................... 5

A. Petitioner's Federal Complaint.................................................................................. 5

B. Respondent's Motion to Dismiss...........................................................

5

C. Respondent's September 2023 Admission................................................................ 5

III. Proceedings Before the Magistrate Judge and District Court................................................ 6

A. The Magistrate Judge's Report and Recommendation............................................... 6

B. Petitioner's Objections to the Report and Recommendation........... ;..................

7

C. The District Court's Order.......................................................................................... 10

D. The Second Circuit's Affirmance............................................................................. 11

SUMMARY OF ARGUMENT..... ........................................

11

ARGUMENT.....................................................................................................................

14

I. THE FEDERAL MAGISTRATES ACT GAVE PETITIONER THE RIGHT

TO A DE NOVO DETERMINATION OF HER UCL OBJECTIONS

BY A JUDGE OF THE DISTRICT COURT..........................................................

...14

iii

II. ARTICLE III PROTECTIONS REQUIRED AN INDEPENDENT

DETERMINATION BY A CONSTITUTIONALLY PROTECTED JUDGE.....................20

III. THE DECISION BELOW NULLIFIES CONGRESS'S MANDATORY

COMMAND AND STRIPS LITIGANTS OF THEIR STATUTORY RIGHT

TO JUDICIAL REVIEW.................................................................................................... 24

IV. THE UNDENIABLE VIOLATION MAKES THIS CASE AN IDEAL VEHICLE........ 25

V. THE DECISION CONFLICTS WITH THIS COURT'S PRECEDENTS REQUIRING

STRICT ENFORCEMENT OF CONGRESSIONALLY MANDATED STANDARDS

OF REVIEW........................................................................................................................ 26

VI. THE CONSTITUTIONAL STAKES HEIGHTEN THE NEED FOR REVIEW............. 26

VII. THE QUESTION REQUIRES THIS COURT'S DEFINITIVE RESOLUTION............. 27

CONCLUSION.......................................................................................................................... 27

IV

TABLE OF AUTHORITIES

Agosto v. INS,

436 U.S. 748(1978)..................................................................................................... 17

Banga v. Regents of the University of California,

A151758 [nonpub. opn.] (Cal. Ct. App. Oct. 1, 2019)....................................... passim

Banga v. Regents of the Univ, of Cal.,

Al 62936 [nonpub. opn.] (Cal. Ct. App. Nov. 18, 2022)........................................ passim

Bradley v. United States,

410 U.S. 605 (1973)...................................................................................................... 17

Chandler v. Roudebush,

425 U.S. 840 (1976)................................................................................ 12, 17, 19, 24, 6

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938)....................................................................................... 13, 23, 24, 27

Gee v. Estes,

829 F.2d 1005 (10th Cir. 1987)...............................

Glidden v. Zdanok,

370 U.S. 530(1962)..............................................................

19

13,20,26

Goodman v. United States,

518 F.2d 505 (5th Cir. 1975)............................................................................ ;.............. 12

Hill v. City of Clovis,

63 Cal. App. 4th 434 (1998)............................................................................................ 18

Klein v. Earth Elements, Inc.,"

59 Cal.App.4th 965 (1997)..................................................................... ,............................. 3

Kwikset Corp. v. Superior Court,

51 Cal.4th 310 (2011)........................................................................................

....8

Local 777, Democratic Union Organizing Committee v. NLRB,

603 F.2d 862 (D.C. Cir. 1979)......................................................................................... 17

Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,

458 U.S. 50 (1982)........................................................................................................ 22

Pugliese v. Superior Court,

146 Cal. App. 4th 1444.................................................................................................. 18

Renegotiation Board v. Bannercraft Clothing Co., Inc.,

415 U.S. 1 (1974)...................................................................................................... 17, 20

Temple Community Hospital v. Superior Court,

20 Cal.4th 464 (1999)..................................................................................

■............ 4

Thomas v. Am,

474 U.S. 140(1985)....................................................................................................... 25

United States v. Edwards,

602 F.2d 458 (1st Cir. 1979)............................................................................................ 14

United States v. First City National Bank,

386 U.S. 361 (1967)................ 12, 17, 19, 22, 26

United States v. Raddatz,

447 U.S. 667 (1980)...........................................................................12, 13, 16, 17, 21, 24, 26

West v. American Telephone & Telegraph Co.,

311 U.S. 223 (1940)............................

i...............23

STATUTES

28 U.S.C. § 631(a), (i)................................................................................................................. 21

28 U.S.C. § 634(b)........................

21

28 U.S.C. § 636(b)(1)(B)............................................................................................................14

28 U.S.C. § 636(b)(1)(C)...........................................................1, 6, 7, 10, 14, 16, 19, 21, 24, 25

28 U.S.C. § 1254(1).........................................................................

2

Cal. Bus. & Prof. Code § 17200............................................................................ 3, 5, 7, 8, 18, 25

Cal. Bus. & Prof. Code § 17203................................................................................................... 3

Cal. Bus. & Prof. Code § 17204...................................................................................

8

Cal. Bus. & Prof. Code § 17208................................................................................................ 3, 5

Cal. Health & Safety Code § 123110.................................................................................. 3, 4, 18

Cal. Health & Safety Code §§ 123100-123200......................................................................... 4, 5

CONSTITUTIONAL PROVISIONS

...1, 20, 22

U.S. Const. Art. Ill, § 1................................................................................................

OTHER AUTHORITIES

The Federalist No. 78

21, 26

Federal Rule of Civil Procedure 72(b)

7

vii

Kamlesh Banga respectfully petitions the Court for a writ of certiorari to review the

decision of the United States Court of Appeals for the Second Circuit.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case presents a pure question of statutory interpretation with constitutional

dimensions: of 28 U.S.C. § 636(b)(l)(C)'s mandatory review requirement and its relationship to

Article Ill's allocation of judicial power. Article III, Section 1 of the United States Constitution

provides:

The judicial Power of the United States, shall be vested in one supreme Court, and in

such inferior Courts as the Congress may from time to time ordain and establish. The Judges,

both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and

shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished

during their Continuance in Office.

The Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), governs district court review of

magistrate judge recommendations on dispositive motions and provides:

Within fourteen days after being served with a copy, any party may serve and file written

objections to such proposed findings and recommendations as provided by rules of court. 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 judge.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Second Circuit is unpublished.

See Banga v. Lustig, No. 24-140 (2d Cir. July 17, 2025) (App. la-8a).

The opinion of the United States District Court for the Southern District of New York is

unpublished. See Banga v. Lustig, No. 1:22-cv-09825-PAE-SN, 2023 WL 8805690 (S.D.N.Y.

Dec. 20, 2023) (App. 10a-21a).

The Report and Recommendation of the United States Magistrate Judge is unpublished.

See Banga v. Lustig, No. 1:22-cv-09825-PAE-SN, 2023 WL 9099985 (S.D.N.Y. Oct. 30, 2023)

(App. 22a-35a).

JURISDICTION

The judgment of the United States Court of Appeals for the Second Circuit was entered

on July 17, 2025 (App. la-8a). The Court of Appeals denied Petitioner's timely petition for panel

rehearing and rehearing en banc on September 4, 2025 (App. 9a). This petition is filed within

ninety days of that denial. This Court's jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATEMENT OF FACTS

A. The California State Court Proceedings

On January 7, 2016, Petitioner filed a lawsuit in California Superior Court against the

University of California, San Francisco, Anga Lao, and Andrew Dundas arising from the

deliberate concealment of objective medical testing data from Petitioner's medical records. The

concealed data involved Auditory Brainstem Response ("ABR") testing1 performed during

Petitioner's treatment at UCSF in 2012 and 2013 under Respondent Dr. Lawrence Lustig's

supervision. Dr. Lustig was not originally a party to the California litigation. Dr. Lustig

maintained that no ABR data was ever generated during the ABR testing.

While the appeal was pending, on July 23, 2019, the California Department of Public

Health discovered that on April 8, 2014, Dr. Lustig created two separate follow-up reports. In the

1 Auditory Brainstem Response testing is an objective neurophysiological procedure that

measures electrical activity in the auditory nerve and brainstem pathways in response to sound,

providing diagnostic assessment of hearing function.

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first follow-up report, he included Petitioner's follow-up visit notes. In the second follow-up

report—also dated April 8, 2014—he concealed Petitioner's objective ABR test findings from

November 5, 2012. Dr. Lustig concealed these reports before leaving UCSF to work at Columbia

University. This discovery revealed that Dr. Lustig not only withheld the ABR data but also

altered the ABR testing results by inserting new dates in the medical record to make it falsely

appear that the records referred to the April 8, 2014 follow-up visit rather than the actual

November 5,2012 test date.

B. The California Court of Appeal's First Decision Authorizing

UCL Claims

The original California litigation proceeded to appeal. On October 1, 2019, the California

Court of Appeal issued its decision in Banga v. Regents of the University of California (2019)

A151758 [nonpub. opn.] ("Banga F). App. 36a-43a. The Court held that Petitioner was entitled

to receive a complete copy of her medical record. App. 38a-39a.

The Court further held:

Here, Banga may be able to base an unfair competition claim on the

Regent's violation of section 123110. Indeed, she arguably did so in her

first amended complaint. She alleges a violation of Business and

Professions Code section 17200, including allegations that she requested

copies of her patient records and the Regents failed to provide them,

although she appears to allege that this is a violation of the Regent's

policies rather than the Health and Safety Code. In her prayer, she does not

specify relief available under Business and Professions Code section

17200, such as restitution or an injunction, but she does request 'other

relief as the Court deems proper.' On remand she may revisit the remedies

in a second amended complaint. App. 40a.

The Court of Appeal provided detailed guidance on UCL claims, stating:

Unfair competition claims may be based on violations of other statutes,

including state laws that govern information-sharing practices. (Cisneros v.

U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 563-564 [violations of credit

and consumer reporting laws].) A single unfair or unlawful act may suffice.

(Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 968, th. 3.)

Injunctive relief—e.g., an order to produce the medical records—is available

(see Bus. & Prof. Code, § 17203), and the limitations period is four years. (See

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Bus. & Prof. Code, § 17208; Cortez v. Purolator Air Filtration Products Co.

(2000) 23 Cal.4th 163, 178-179 [four-year limitations period usually applies

even if claim is based on violation of statute with shorter limitations period]).

App. 39a-40a.

C. Petitioner’s Compliance with the Appellate Mandate

Following remand, Petitioner took immediate steps to comply with the Court's directive.

On March 12, 2020, pursuant to California Health and Safety Code section 123110, Petitioner sent

Dr. Lustig a written request for the objective findings from her ABR testing.

On March 16, 2020, Petitioner filed a Second Amended Complaint asserting six causes of

action: Breach of Contract, Fraudulent Concealment of Medical Records, Intentional Alteration of

Medical Records, Intentional Infliction of Emotional Distress, Violation of Business and

Professions Code section 17200 et seq. (Unfair Competition Law), and Violation of Health and

Safety Code sections 123100-123200. Dr. Lustig was joined as a party defendant based on the

California Department of Public Health's July 23,2019 discovery that he had fraudulently

concealed and altered Petitioner's medical records in the April 8, 2014 follow-up report.

Defendants demurred to the four tort causes of action (Fraudulent Concealment, Intentional

Alteration, Intentional Infliction of Emotional Distress, and Breach of Contract), and the trial court

sustained the demurrer without leave to amend. On October 16, 2020, Respondent Dr. Lustig filed

his answer to the two remaining statutory causes of action and claimed under oath that he had not

violated these statutory provisions intentionally. On May 7, 2021, Petitioner withdrew both

remaining statutory claims without prejudice and filed an appeal challenging the trial court's

dismissal of the four tort causes of action.

D. The California Court of Appeal's Second Decision

On appeal, Defendants asserted for the first time that Petitioner's claims were essentially

spoliation of evidence claims prohibited by Temple Community Hospital v. Superior Court

(1999) 20 Cal.4th 464, 469, 476-477. App. 48a. On November 18, 2022, the California Court of

Appeal issued its decision in Banga v. Regents of the Univ, of Cal. (2022) (Al 62936) [nonpub.

opn.] ("Banga IF). App. 44a-53a. The Court affirmed the trial court's dismissal of the tort claims.

However, regarding Petitioner's statutory claims alleging violations of the Unfair Competition

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Law and the Health and Safety Code, the Court stated:

And Banga I, supra, A151758, determined that Banga has a remedy for

suppression of medical records under Health and Safety Code section

123120, and that she might have an additional remedy (for the same

alleged statutory violation) under the Unfair Competition Law (Bus. &

Prof. Code, § 17200 et seq.) The Court further noted: However, Banga

voluntarily dismissed those statutory claims, which she pled after remand,

and they are not before us on this appeal. App. 49a

II. THE FEDERAL PROCEEDINGS

A. Petitioner’s Federal Complaint

On November 17, 2022—one day before the Banga II decision issued—Petitioner filed a

federal lawsuit in the United States District Court for the Southern District of New York, Case

Number 1:22-cv-09825-PAE-SN. ECF No. 1. The federal complaint asserted claims that had not

been litigated in state court or had been dismissed without prejudice, including violation of

Health and Safety Code sections 123100-123200, violation of Common Count, violation of

Business and Professions Code section 17200 et seq. (Unfair Competition Law), unjust

enrichment, constructive fraud, and continued breach of fiduciary duty.

B. Respondent's Motion to Dismiss

On May 18, 2023, Respondent moved to dismiss the federal complaint, asserting that

Petitioner's claims were barred by res judicata based on the prior California state court

proceedings and by applicable statutes of limitations. ECF No. 36. Regarding the Unfair

Competition Law (UCL) claim, Respondent argued that the claim is time-barred under California

Business and Professions Code section 17208, which requires that unfair business practices suits

be filed within four years after the cause of action accrued. Respondent maintained that

Petitioner's last contact with Dr. Lustig was in 2014, making the November 17, 2022 complaint

untimely.

C. Respondent's September 2023 Admission

In his September 8,2023 reply brief, Respondent disclosed that Petitioner's ABR records

had been withheld "on the ground of confidentiality" and "can be produced" with court permission.

-5-

III. PROCEEDINGS BEFORE THE MAGISTRATE JUDGE AND

DISTRICT COURT

A. The Magistrate Judge’s Report and Recommendation

On October 30, 2023, Magistrate Judge Sarah Netbum issued a Report and

Recommendation recommending dismissal of all of Petitioner's claims, including her claim

under California's Unfair Competition Law. App. 22a-33a. The magistrate's entire analysis of the

UCL statute of limitations stated:

The statute of limitations for California Business & Professions Code § 17200 is four

years. Bus. & Prof. § 17208. Under this cause of action, Plaintiff alleges that Defendant engaged

in an unfair business practice by failing to provide her with the computerized data from the 2012

and 2013 ABR tests, harming her personal injury settlement in 2014 and leading to unnecessary

ABR testing in 2013 and 2014. This cause of action accrued nine years ago and is therefore time-

barred. App. 32a.

The Federal Magistrates Act’s De Novo Review Requirement

When a magistrate judge issues a report and recommendation on a dispositive motion, 28

U.S.C. § 636(b)(1)(C) provides that any party "may serve and file written objections" within fourteen

days. The statute mandates: "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." 28 U.S.C. § 636(b)(1)(C) (emphasis added). After conducting de novo review, "the district

judge may accept, reject, or modify the recommended disposition; receive further evidence; or return

the matter to the magistrate judge with instructions." Id.

This statutory mandate gave Petitioner the right to have a district judge—not a magistrate

judge—make an independent determination of any objections she filed to the magistrate's Report

and Recommendation.

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B. Petitioner's Objections to the Report and Recommendation

Petitioner filed timely, specific written objections to the Magistrate's Report and

Recommendation on November 12,2023 (ECF No. 59), and amended objections on November

20, 2023 (ECF No. 61), pursuant to 28 U.S.C. § 636(b)(1)(C) and Federal Rule of Civil

Procedure 72(b). Objection No. 3 (ECF No. 61 at 23-25) specifically challenged the magistrate's

UCL statute of limitations analysis as legally erroneous and factually incomplete. Petitioner cited

the mandatory statutory language requiring the district judge to "make a de novo determination

of those portions of the report or specified proposed findings or recommendations to which

objection is made." 28 U.S.C. § 636(b)(1)(C).

OBJECTION NO. 3

Magistrate Judge Abused Her Discretion By Overlooking Factual

Allegations of Paragraphs 44, 45, 47 of the RFAC and Evidence

Concerning Defendant's Violation of Bus. & Prof. Code §17200 Et Seq.

Paragraph 39 of the complaint alleges that on June 7,2017, Plaintiff appealed

a February 15, 2017 Superior Court judgment seeking to enforce her right to

access her medical records and pursue the Section 17200 claim. [ECF 26, pg.

9:25-26] On October 1, 2019, die Court of Appeal held in relevant part that

on remand, Banga may also be able to plead a claim under the Unfair

Competition Law. (Bus. & Prof. Code, § 17200.) Specifically, the Court of

Appeal stated:

Unfair competition claims may be based on violations of other statutes,

including state laws that govern information-sharing practices. (See Cisneros

v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 563-564 [violations of

credit and consumer reporting laws].) A single unfair or unlawful act may

suffice. {Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965,968, fh. 3.)

Injunctive relief—e.g., an order to produce the medical records—is available

(see Bus. & Prof. Code, § 17203), and the limitations period is four years.

(See Bus. & Prof. Code, § 17208; Cortez v. Purolator Air Filtration Products

Co. (2000) 23 CaL4th 163, 178-179 [four-year limitations period usually

applies evenjf claim is based on violation of statute with shorter limitations

period]).

Here, Banga may be able to base an unfair competition claim on the Regent's

violation of section 123110. Indeed, she arguably did so in her first amended

complaint. She alleges a violation of Business and Professions Code section

17200, including allegations that she requested copies of her patient records

and the Regents failed to provide them, although she appears to allege that

-7-

this is a violation of the Regent's policies rather than the Health and Safety

Code. In her prayer, she does not specify relief available under Business and

Professions Code section 17200, such as restitution or an injunction, but she

does request "other relief as the Court deems proper." On remand she may

revisit the remedies in a second amended complaint.

The Regents suggest that Banga cannot establish standing because she has

not suffered any loss of money or property. (See Bus. & Prof. Code, § 17204

[limiting relief to persons who have lost money or property].) However,

Banga may have standing by alleging she paid $2,177.46 for the October

2013 tests and did not receive the full benefit of her bargain. (See Kwikset

Corp. v. Superior Court, supra, 51 Cal.4th atp. 323 ["There are innumerable

ways in which economic injury from unfair competition may be shown."].)

She may be able to allege other costs caused by the Regents' refusal to provide

the underlying test data, such as the cost of additional tests that she obtained

at Stanford.

The Regents confuse standing with eligibility for restitution. It is irrelevant

whether an economic injury posited for standing can be remedied by an award

of restitution. {Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 335336.) To be clear, we do not hold that Banga can successfully plead an

unlawful competition claim, but she should be given an opportunity to do so.

Paragraph 44 alleges that pursuant to the Court of Appeal's decision, Plaintiff

directly requested Defendant Lustig to provide a complete copy of her ABR

Testing of April 6, 2012 and October 7,2013. Paragraph 45 of the complaint

alleges that on March 16, 2020, Plaintiff filed a Second Amended Complaint

in the California lawsuit and named Dr. Lustig as a party defendant. On

October 16, 2020, Defendant Lustig, jointly represented by counsel, filed a

verified Answer admitting to not intentionally violating Business and

Professions Code Section 17200. Specifically, Defendant Lustig stated in his

jointly filed Answer:

AS A TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, to

the Plaintiffs Third Amended Complaint, these answering Defendants assert

they have not committed any unlawful, unfair or fraudulent business act or

practice and, as such, there are no remedies available to Plaintiff.

AS AN ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, to the Plaintiffs Third Amended Complaint, these answering

Defendants assert they have not intentionally committed any unlawful, unfair

or fraudulent business act or practice and, as such, there are no remedies

available to Plaintiff.

[ECF 48, Banga Decl. ^21, Exhibit 13, at page 15:20-27.]

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Paragraph 47 of the complaint states that on March 29, 2021, Plaintiff

voluntarily dismissed the Section 17200 claim without prejudice in order to

perfect an appeal. Plaintiff then refiled the Section 17200 claim on November

17, 2022. The Magistrate Judge overlooked the key details that Defendant

Lustig jointly admitted that "they have not intentionally committed any

unlawful, unfair or fraudulent business act or practice and, as such, there are

no remedies available to Plaintiff." By overlooking allegations of the RFAC,

Magistrate Judge erred by concluding this cause of action accrued nine years

ago and was time-barred, when Defendant's admission and Plaintiffs

voluntary dismissal and refiling prove otherwise.

The District Judge must conduct a de novo review as required under Rule

72(b) and decline to adopt the Magistrate Judge's Report and

Recommendations. Therefore, upon conducting an independent review of the

record, the District Judge will find that Plaintiffs claims were asserted within

the limitations period based on the factual allegations overlooked by the

Magistrate Judge. As alleged in paragraph 90 of the RFAC that Defendant

Lustig knowingly and intentionally violated and continue to violate

California Health and Safety Code § 123110 by withholding Plaintiffs ABR

testing of April 6, 2012 until October 7, 2013 at to date. Importantly,

Defendant Lustig and defense counsel claimed in their Reply brief that "the

plaintiffs complete medical chart had been produced on numerous occasions

and the medical records withheld from the production were confidential." In

this case, Plaintiff is only seeking the objective findings of ABR testing of

April 6,2012 and October 7,2013 which Defendant Lustig claimed had been

withheld from production due to confidently.

Defendant's continuing violation by unlawfully withholding Plaintiffs ABR

data of April 6, 2012 and October 7, 2013 further shows the claims remain

timely, unresolved and constitute continuing violation of Section 17200. As

held in Pugliese v. Superior Court, where a tort involves a continuing wrong,

the statute does not begin to run until the tortious acts end. Here, Defendant's

tortious denial of the data is continuing. The limitations period has not started,

let alone expired.

Plaintiff believes that an impartial analysis by the District Judge, without

deference to the Magistrate Judge's errors, will reveal Plaintiffs compliance

with the statute of limitations and defendant's ongoing violations. Plaintiff

respectfully seeks only a fair de novo review to correct the clear mistakes in

the R&R.

Respondent Filed No Opposition

Respondent filed no opposition to Petitioner's objections, including Objection No. 3,

which contained seven separate arguments that stood uncontroverted in the record. The following

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elements all remained uncontested: the California Court of Appeal's express authorization of

UCL claims in Banga I, the factual allegations in paragraphs 44, 45, and 47 of the RFAC,

Respondent's verified October 16, 2020 judicial admission (ECF No. 48, Banga Decl. TJ21, Ex.

13), the California continuing violation authority (Pugliese v. Superior Court, 146 Cal. App. 4th

1444), the California voluntary dismissal authority (Hill v. City of Clovis, 63 Cal. App. 4th 434),

and the statutory provisions (Bus. & Prof. Code §§ 17200, 17208).

C. The District Court’s Order

28 U.S.C. § 636(b)(1)(C) required the district judge to make a de novo determination of

Petitioner's objections. On December 20, 2023, District Judge Paul A. Engelmayer issued a

twelve-page Opinion and Order adopting the magistrate's Report and Recommendation in its

entirety. Despite the uncontested record regarding the UCL claim, the order contains no

discussion of the UCL claim under California Business & Professions Code section 17200. The

words "UCL," "section 17200," and "section 17208" do not appear in the order.

The order does not mention the California Court of Appeal's October 1, 2019 decision in

Banga I, which held that "on remand, Banga may also be able to plead a claim under the Unfair

Competition Law" with "a limitations period [of] four years." Nor does it reference the

California Court of Appeal's November 18, 2022 decision in Banga II, which affirmed this

authorization.

The order does not address whether the October 1, 2019 Banga I decision established

when the UCL claim could first accrue, does not discuss the March 12, 2020 records request

referenced in paragraph 44, and does not discuss Respondent's October 16, 2020 verified Answer

referenced in paragraph 45. It does not analyze whether California's continuing violation doctrine

applies, and does not discuss the March 29, 2021 voluntary dismissal without prejudice or the

November 17, 2022 refiling referenced in paragraph 47.

The order does not state whether the district court conducted de novo review of Objection

No. 3.

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D. The Second Circuit’s Affirmance

On July 17, 2025, the United States Court of Appeals for the Second Circuit issued a

summary order affirming the district court's judgment. The Second Circuit's opinion did not

address whether the district court had conducted de novo review under 28 U.S.C. § 636(b)(1)(C)

or whether the district court's complete silence regarding the UCL claim violated the statute's

mandatory command. On September 4, 2025, the Second Circuit denied Petitioner's petition for

panel rehearing and rehearing en banc.

SUMMARY OF ARGUMENT

The question presented is straightforward: Does 28 U.S.C. § 636(b)(l)(C)'s command

that "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" require actual

judicial analysis, or may district courts adopt magistrate recommendations through complete

judicial silence?

A. THE UNDISPUTED FACTS

Petitioner filed seven specific objections to the magistrate's recommendation to dismiss

her California Unfair Competition Law claim. The first objection cited controlling California

Court of Appeal authority. In Banga I, the court expressly authorized UCL claims and directed

that "on remand she may revisit the remedies in a second amended complaint." The magistrate

never mentioned this decision. Respondent filed no opposition.

The district court issued a twelve-page order adopting the magistrate's recommendation in its

entirety. The order says nothing about the UCL claim. It contains no citation to California

Business & Professions Code sections 17200 or 17208. The words "UCL," "section 17200," and

"section 17208" do not appear. The order never mentions Banga I or Banga II. It provides no

analysis of any objection.

B. The Statutory Violation

This Court has held that when Congress specifies a standard of judicial review, courts

must apply it as written. In Chandler v. Roudebush, 425 U.S. 840, 861-862 & n.37 (1976), the

Court held that "by specifying review de novo, Congress denied the district court discretion to

-11-

consider the case in any other manner." In United States v. First City National Bank, 386 U.S.

361, 368 (1967), the Court defined "de novo" to mean "the court should make an independent

determination of the issues." In United States v. Raddatz, 447 U.S. 667, 676 (1980), the Court

emphasized that Congress used "determination" believing "Art. Ill was satisfied if the ultimate

adjudicatory determination was reserved to the Art. Ill officer."

A determination requires words. Where a court mentions no statute, cites no authority,

makes no findings, and addresses no objections, the court has determined nothing. This is not

inadequate analysis. It is the absence of analysis. The word "shall" is mandatory. By requiring

that district courts "shall make a de novo determination" of objections, Congress denied courts

discretion to adopt magistrate recommendations without making determinations.

C. Why Silence Cannot Satisfy the Statute

Respondent will likely argue that the district court's adoption of the magistrate's

recommendation constitutes a determination. This fails for three reasons.

First, the statute requires the court to "make" a determination. That verb requires independent

judicial analysis. Passive acquiescence is not making. Second, the statute lists three possible

actions: "accept, reject, or modify." Each requires reasoning. A court cannot meaningfully accept,

reject, or modify recommendations without indicating which parts it evaluated and why. Third, if

adoption through silence satisfies the statute, then "shall" means nothing and objections serve no

purpose. Congress would have authorized rather than required de novo review.

D. What the Statute Required Here

Section 636(b)(1)(C) required the district court to: (1) conduct de novo review of

Petitioner's seven specific objections; (2) address the California Court of Appeal authority cited

in the first objection, specifically Banga I's October 1, 2019 holding that Petitioner could pursue

UCL remedies; (3) determine when the UCL claim accrued under California law; and (4) explain

how a claim authorized on October 1, 2019 and filed on November 17, 2022 is time-barred under

California's four-year statute.

The district court did none of these things. The order says nothing about the UCL claim,

never cites sections 17200 or 17208, never mentions Banga I or Banga II, and provides no

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response to any objection. Section 636(b)(1)(C) requires the district court to conduct de novo

review before reaching any conclusion, not to permit a non-Article III officer's determination to

stand through judicial silence.

E. The Constitutional Dimension

The statutory violation implicates Article III because Congress structured § 636(b)(1)(C)

to preserve constitutional protections. Article Ill's tenure and salary protections are "basic

constitutional protections designed in part for the benefit of litigants." Glidden v. Zdanok, 370

U.S. 530, 536 (1962). Magistrate judges lack these protections. They serve eight-year renewable

terms, can be removed for cause, and their salaries may be adjusted.

In Raddatz, this Court upheld magistrate recommendations only because "the ultimate

determination is made by the district judge" with authority to "accept, reject, or modify the

magistrate's proposed findings." 447 U.S. at 675-676. Complete judicial silence delegates final

decision-making authority to the magistrate judge, which Article III forbids. When district courts

provide no indication that Article III judges exercised independent judgment, the constitutional

protections are nullified.

This diversity case compounds the problem. Under Erie R.R. Co. v. Tompkins, 304 U.S.

64 (1938), federal courts sitting in diversity must apply state law as state courts declare it.

Petitioner's objection identified controlling California Court of Appeal authority directly

addressing the UCL claim's availability. A district court cannot "make a determination" of

objections to state law claims without acknowledging the controlling state appellate decisions the

objecting party cited. When federal courts can ignore state appellate decisions through silence,

Erie's constitutional mandate becomes unenforceable.

F. Systemic Importance

This question affects thousands of litigants who file objections to magistrate

recommendations. Congress established this right to ensure Article III review. If complete silence

satisfies § 636(b)(1)(C), the statutory right becomes unenforceable. District courts could

routinely adopt recommendations without indicating they conducted mandated review. Article

Ill's protections would become illusory, and Erie's mandate would be unenforceable.

-13-

Three violations converge here. Section 636(b)(1)(C) required a determination; the court

made none. Article III required that an independent, constitutionally protected judge exercise

judicial power; no evidence exists that any Article III judge did so. Erie required addressing

controlling California law; the court never acknowledged the decisions Petitioner cited. Without

this Court's intervention, § 636(b)(l)(C)'s mandatory language becomes advisory, Article Ill's

protections become theoretical, and Erie's constitutional mandate becomes unenforceable.

ARGUMENT

I. THE FEDERAL MAGISTRATES ACT GAVE PETITIONER

THE RIGHT TO A DE NOVO DETERMINATION OF HER

UCL OBJECTIONS BY A JUDGE OF THE DISTRICT COURT

Section 636(b)(1)(B) of the Federal Magistrates Act authorizes district court judges to

refer case-dispositive motions to magistrates, but explicitly limits magistrate authority to making

"proposed findings of fact and recommendations for disposition by the district judge." United

States v. Edwards, 602 F.2d 458, 466-467 (1st Cir. 1979).

When any party objects to any aspect of a magistrate's report, the Act mandates that "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." 28 U.S.C. § 636(b)(1)(C).

This required the district court to make a determination of Petitioner's seven specific objections

to the magistrate's recommendation dismissing her UCL claim.

The district court's twelve-page order never mentions the UCL claim, never cites

California Business & Professions Code sections 17200 or 17208, never mentions the controlling

California Court of Appeal decisions that Petitioner specifically cited, and contains no findings

on any of the seven issues Petitioner raised. Respondent filed no opposition to any objection.

A. Adoption Without Analysis Cannot Satisfy the Statute’s

Command to ’’Make a De Novo Determination”

The statute requires three distinct actions: (1) de novo review, (2) determination, and (3)

acceptance, rejection, or modification. These are sequential requirements, not alternatives. A

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court must first conduct de novo review, then make a determination, and finally accept, reject, or

modify based on that determination.

The district court's order states it "adopts" the Report and Recommendation. But adoption

is the conclusion of the statutory process, not a substitute for it. To adopt meaningfully, a court

must determine what it is adopting and why. Without any analysis of the UCL claim, any

findings on the seven objections, or any mention of the controlling California authority cited, the

district court determined nothing about these objections. It deferred to the magistrate's

determination.

If mere adoption without analysis satisfies Section 636(b)(1)(C), then "shall" becomes

advisory, "de novo determination" becomes meaningless, the requirement to respond to

objections disappears, Article III judges need never exercise independent judgment, and the

statutory scheme collapses into rubber-stamping. Congress did not enact a statute permitting

district courts to delegate final decision-making to magistrates through the word "adopt." It

enacted a statute requiring district courts to make independent determinations.

What would satisfy the statute? A district court order stating: "We have reviewed Petitioner's first

objection concerning the California Court of Appeal's October 1, 2019 decision in Banga I.

Petitioner argues this decision authorized the UCL claim and establishes the accrual date. Having

considered this argument and the controlling California authority, we conclude the magistrate

correctly determined the claim is time-barred because [reasons]." That order makes a

determination. The judge has looked at the objection, identified the legal issue, considered the

controlling authority, and explained the conclusion.

What happened here? The district court wrote "adopted in its entirety" and said nothing

else about the UCL claim. No mention of Banga I. No mention of the seven objections. No

mention of sections 17200 or 17208. No analysis. No reasoning.

If both approaches satisfy the statute, "shall" is meaningless. Congress wrote a statute

that says district judges "shall make a de novo determination" when parties object. That language

requires courts to actually determine something—to engage with the objections, consider the

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legal issues, and explain the decision. Wholesale adoption without a word of analysis does not

satisfy that command.

B. The Statutory Text Distinguishes ’’Determination ” from ’’Adoption”

Section 636(b)(1)(C) provides: "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 judge."

The first sentence is mandatory ("shall make") and specifies the required action ("de novo

determination"). The second sentence is discretionary ("may") and specifies the available

outcomes ("accept, reject, or modify"). Congress used different verbs for different functions.

If "accept" in the second sentence satisfied "make a de novo determination" in the first sentence,

the first sentence would be surplusage. Congress would have simply written: "A judge of the

court may accept, reject, or modify the magistrate's findings or recommendations." By adding the

first sentence with mandatory language, Congress required something more than mere

acceptance. It required independent determination before any acceptance occurs.

Congress chose "determination" deliberately—not "adoption" or "acceptance."

"Determination" implies active decision-making: weighing evidence, considering arguments,

applying law, reaching conclusions. "Adoption" and "acceptance" can be passive: agreeing with

what someone else decided. By requiring courts to "make a de novo determination," Congress

demanded active, independent judicial decision-making.

The Supreme Court's interpretation in United States v. Raddatz confirms this reading. The

Court emphasized that Congress used "determination" rather than "hearing," believing "Art. Ill

was satisfied if the ultimate adjudicatory determination was reserved to the Art. Ill officer." 447

U.S. 667, 676 (1980). An "adjudicatory determination" requires actual adjudication—considering

issues, weighing arguments, and deciding. It cannot occur through silent acquiescence.

When the district court writes only "the Report and Recommendation is adopted" without any

indication it made determinations about specific objections, it has satisfied the discretionary

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second sentence (choosing to "accept") but violated the mandatory first sentence (failing to

"make a de novo determination").

C. De Novo Determination” Means Independent Decision-Making

Unprejudiced by the Magistrate’s Recommendation

When Congress uses a legal term like "de novo" in a statute, courts presume Congress

used that term in its accepted legal sense. Agosto v. INS, 436 U.S. 748, 754 (1978); Bradley v.

United States, 410 U.S. 605, 609 (1973). This interpretive rule has particular force when

Congress specifies a standard ofjudicial review. Chandler v. Roudebush, 425 U.S. 840, 862-863

n.37 (1976).

In Chandler, this Court held that Congress gave federal employees the right to de novo

judicial determination of employment discrimination claims, even after substantial evidentiary

records had been developed in administrative proceedings. The Court rejected approaches that

would permit "fragmentary de novo consideration" of claims. 425 U.S. at 861. By specifying de

novo review, Congress "denied the district court discretion to consider the case in any other

manner." Id. at 861-862 and n.37.

The term "de novo" has a common and accepted legal meaning: an independent

determination of the issues without deference to any prior resolution. Local 777, Democratic

Union Organizing Committee v. NLRB, 603 F.2d 862, 892 (D.C. Cir. 1979). In Renegotiation

Board v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 23 (1974), the Court observed that such

proceedings are "unfettered by any prejudice from the agency proceeding and free from any

claim that the Board's determination is supported by substantial evidence."

Congress used "determination" rather than "hearing," believing "Art. Ill was satisfied if

the ultimate adjudicatory determination was reserved to the Art. Ill officer." United States v.

Raddatz, 447 U.S. at 676. As this Court held in United States v. First City National Bank, 386

U.S. 361, 368 (1967), "The critical words seem to us to be 'de novo' and 'issues presented.' They

mean to us that the court should make an independent determination of the issues."

-17-

D. The District Court Made No Determination of Petitioner’s Seven

Specific UCL Objections

Petitioner filed seven specific objections to the magistrate's three-sentence UCL

recommendation, each supported by controlling California authority and specific record

citations.

The First Objection cited the California Court of Appeal's express holding in Banga v.

Regents of the University of California (2019) Al 51758 (Banga I), which authorized UCL

claims and specifically directed: "On remand she may revisit the remedies in a second amended

complaint." The magistrate never mentioned Banga I. The Second Objection addressed

paragraph 44 of the RFAC alleging a March 12, 2020 records request under Health & Safety

Code section 123110, potentially establishing a new accrual date. The Third Objection addressed

paragraph 45 showing Dr. Lustig was not named as a defendant until March 16, 2020. The

Fourth Objection addressed Respondent's October 16, 2020 verified judicial admission denying

intentional violations of section 17200 (ECF No. 48, Banga Decl. ^21, Ex. 13). The Fifth

Objection addressed paragraph 47 documenting voluntary dismissal without prejudice on March

29, 2021 and timely refiling on November 17, 2022 under Hill v. City of Clovis, 63 Cal. App. 4th

434. The Sixth Objection addressed California's continuing violation doctrine from Pugliese v.

Superior Court, 146 Cal. App. 4th 1444, applicable where tortious acts are ongoing. The Seventh

Objection invoked the mandatory requirement of de novo review under 28 U.S.C. §

636(b)(1)(C).

Respondent filed no opposition to any objection. All seven arguments, together with the

controlling California appellate authority and specific factual allegations supporting them, stood

uncontroverted in the record.

The district court's order addresses none of this. The order never uses the word "UCL,"

never cites California Business & Professions Code sections 17200 or 17208, never mentions the

controlling California Court of Appeal decisions {Banga I or Banga v. Regents of the Univ, of

Cal. (2022) Al62936), contains no findings on any objection, and analyzes no legal authority

related to the UCL claim. To determine an issue means to consider it, analyze applicable law, and

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reach a conclusion. First City National Bank, 386 U.S. at 368 (requiring "an independent

determination of the issues"). Where a court says nothing about a claim—mentions no statute,

cites no authority, makes no findings—the court has made no determination.

Did the district court make a determination of Petitioner's UCL objections or not? A

determination requires decision. Decision requires words. As the Tenth Circuit held, "a court

abuses its discretion by dismissing a claim upon a magistrate's recommendations and findings

without providing a de novo determination as to objections to the magistrate's report." Gee v.

Estes, 829 F.2d 1005, 1009 (10th Cir. 1987).

Appellate review was impossible. The Second Circuit could not review the district court's

treatment of the UCL claim because the district court said nothing about it. The court had no

findings to review, no reasoning to assess, no legal analysis to evaluate. The statutory violation is

especially apparent because Petitioner's first objection identified controlling California Court of

Appeal authority that both the magistrate and district court completely ignored. The California

Court of Appeal in Banga I expressly authorized UCL claims and directed that "On remand she

may revisit the remedies in a second amended complaint." The statute required the district court

to make a determination of this objection. The district court could not make any determination

without addressing the California Court of Appeal's holding.

Whether the California Court of Appeal decisions required dismissal or permitted the

UCL claim to proceed is a question of California law—not before this Court. The question here

is purely procedural: Did the district court make a determination of Petitioner's objection

regarding these decisions? The answer is no. The district court said nothing about these

decisions, nothing about the UCL claim, and nothing about any of the seven objections.

E. The Mandatory Language of Section 636(b)(1)(C) Required the

District Court to Make a Determination

When objections are filed, "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." 28 U.S.C. § 636(b)(1)(C). As this Court held in Chandler, "by specifying

-19-

review de novo, Congress denied the district court discretion to consider the case in any other

manner." 425 U.S. at 861-862 and n.37.

The word "shall" is mandatory. By specifying that district courts "shall make a de novo

determination" of objections, Congress denied district courts discretion to adopt magistrate

recommendations without making determinations. If a district court can satisfy Section

636(b)(1)(C) by writing the word "adopted" with no analysis, no findings, and no response to

objections, then "shall" has no force. The court would have complete discretion to comply or not

comply—exactly what Chandler held Congress foreclosed.

The district court's complete silence on the UCL claim demonstrates that mandatory

review never occurred. As this Court observed in Bannercraft, de novo review must be

"unfettered by any prejudice from the prior proceeding." 415 U.S. at 23. A district court order

containing no analysis of objections, no citation to controlling authority identified in those

objections, no discussion of the claim itself, and no findings on the legal issues presented

demonstrates complete abandonment of the statutory mandate.

By adopting the magistrate's recommendation without any mention of the UCL claim,

without any analysis of the seven specific objections, and without any findings on the legal

issues raised, the district court violated the mandatory command of 28 U.S.C. § 636(b)(1)(C).

The magistrate judge's determination stands as final through complete judicial silence.

IL ARTICLE III PROTECTIONS REQUIRED AN INDEPENDENT

DETERMINATION BY A CONSTITUTIONALLY PROTECTED

JUDGE

A. Article III Protections Benefit Litigants

By vesting jurisdiction over this diversity case in an Article III federal district court,

Congress entitled Petitioner to have her case decided by an Article III judge with the

independence ensured by lifetime tenure and salary protection. U.S. Const. Art. Ill, § 1. As this

Court held in Glidden v. Zdanok, 370 U.S. 530, 536 (1962), the tenure and salary provisions are

"basic constitutional protections designed in part for the benefit of litigants."

-20-

Hamilton explained why these protections matter: "that inflexible and uniform adherence

to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the

courts of justice, can certainly not be expected from judges who hold their offices by a temporary

commission." The Federalist No. 78, at 470-471.

Magistrate judges hold their offices by temporary commission. They serve eight-year

renewable terms and can be removed for "incompetency, misconduct, neglect of duty, or physical

or mental disability." 28 U.S.C. § 631(a), (i). Their salaries may be adjusted during and between

terms. § 634(b). Congress can modify these protections at any time. Article III judges cannot be

removed except through impeachment. Their salaries cannot be diminished.

B. Raddatz Upheld the Magistrates Act Only Because District Judges

Make Ultimate Determinations

Congress structured the Magistrates Act to respect constitutional constraints. Magistrate

judges may make recommendations on dispositive motions, but "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." 28 U.S.C. § 636(b)(1)(C). The statutory scheme

ensures that ultimate judicial power over dispositive matters is exercised by Article III judges

through mandatory independent review.

In United States v. Raddatz, 447 U.S. 667 (1980), this Court upheld the Magistrates Act

against constitutional challenge. The question was whether district judges could adopt magistrate

recommendations on suppression motions without personally rehearing testimony. The Court

held the practice constitutional because "the ultimate determination is made by the district

judge." Id. at 675. Critical to that holding was the Court's understanding that district judges act as

"ultimate decisionmakers" with authority to "accept, reject, or modify the magistrate's proposed

findings and recommendations." Id. at 676.

The Court emphasized that Congress chose the word "determination" deliberately.

Congress used "determination" rather than "hearing," believing "Art. Ill was satisfied if the

-21-

ultimate adjudicatory determination was reserved to the Art. Ill officer." Id. Congress demanded

more than rubber-stamping. It demanded actual adjudication.

Raddatz depends on district judges actually making determinations. The statute requires

district judges to "accept, reject, or modify"—verbs that require decision and analysis. A judge

cannot accept a recommendation without understanding what is being accepted. A judge cannot

choose among accepting, rejecting, or modifying without evaluating the options. As this Court

held in United States v. First City National Bank, 386 U.S. 361, 368 (1967), the words "de novo"

and "issues presented" mean "the court should make an independent determination of the issues."

When a district court's order contains no words about a claim, no analysis of objections to that

claim, and no engagement with the issues raised, the court is not acting as an "ultimate

decisionmaker." The magistrate is. The magistrate's determination stands as final not because an

Article III judge independently reached the same conclusion, but because no Article III judge

reached any conclusion about it.

Raddatz held that magistrates making final decisions would violate Article III. The

constitutional solution was requiring district judges to make ultimate determinations. If ultimate

determination can occur through complete silence—with no evidence any Article III judge

considered the issue—the constitutional solution fails. Magistrates again make final decisions by

default, and Article III is violated.

C. Complete Judicial Silence Demonstrates No Exercise of Judicial

Power Over the UCL Claim

The district court's twelve-page order contains zero words about the UCL claim. It never

uses "UCL," never cites California Business & Professions Code sections 17200 or 17208, never

mentions the California Court of Appeal decisions Petitioner cited in her objections, and makes

no findings on any of the seven objections.

Article III vests "the judicial Power of the United States" in courts whose judges hold

office during good behavior with protected compensation. U.S. Const. Art. Ill, § 1. The "judicial

Power" requires actual exercise of judgment. Northern Pipeline Construction Co. v. Marathon

-22-

Pipe Line Co., 458 U.S. 50, 58 (1982). When no words indicate any determination occurred,

judicial power was not exercised. It was delegated to a magistrate judge who lacks Article III

protection.

Petitioner was entitled to have an Article III judge—with the independence secured by

lifetime tenure and protected salary—make an independent determination of her UCL objections

before final judgment dismissed her claim. The statutory scheme exists precisely to ensure that

"the ultimate adjudicatory determination" is "reserved to the Art. Ill officer." Raddatz, 447 U.S.

at 676. Petitioner never received any determination. No Article III judge exercised judicial power

over her UCL objections. The magistrate's three-sentence recommendation became final through

judicial silence.

D. Erie Compounds the Violation by Requiring Federal Courts to

Address Controlling State Law

Under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), federal courts sitting in diversity

must apply state law as interpreted by state courts. This is a constitutional requirement. When

state appellate courts have spoken on a question of state law, federal courts are bound by those

holdings. West v. American Telephone & Telegraph Co., 311 U.S. 223, 236 (1940).

Petitioner's first objection identified controlling California Court of Appeal authority directly

addressing the availability of UCL remedies: Banga v. Regents of the University of California

(2019) Al 51758 {Banga I) and Banga v. Regents of the Univ, of Cal. (2022) Al 62936 (Banga II).

The objection explained that these decisions addressed the legal questions at issue. Respondent

filed no opposition disputing these authorities or arguing they were inapplicable.

The district court never mentioned either decision, never cited the California statutes governing

UCL claims, and never analyzed California law on any issue related to the UCL claim.

A district court cannot make a determination of objections to state law recommendations

without at least acknowledging the controlling state appellate decisions the objecting party cited.

Whether those decisions require a particular outcome is a question of California law—not before

this Court. But whether the district court made any determination of objections identifying those

-23-

decisions is a question of federal procedure under Section 636(b)(1)(C) and a question of

constitutional law under Article III and Erie.

When a federal court completely ignores state appellate decisions that a party specifically

cited in objections, makes no mention of the state statutes at issue, and provides no analysis of

state law, it has failed to exercise the judicial power Article III requires. It has also violated Erie's

mandate to apply state law as state courts declare it. Complete silence cannot satisfy Erie's

constitutional command.

E. Three Constitutional and Statutory Violations Converge

Section 636(b)(1)(C) required the district court to make a determination of Petitioner's

objections. The court made no determination. The statute uses mandatory language—"shall"—

denying courts discretion to proceed otherwise. Chandler v. Roudebush, 425 U.S. 840, 861-862

n.37 (1976). Article III required that an independent, constitutionally protected judge exercise

judicial power over dispositive matters. No evidence exists that any Article III judge exercised

judicial power over the UCL claim or the objections to its dismissal. Raddatz, 447 U.S. at 676.

Erie required the district court to apply controlling California law. The court never mentioned the

California appellate decisions Petitioner cited or the California statutes governing the claim. Erie,

304 U.S. 64.

When district courts can adopt magistrate recommendations through complete silence—

without mentioning the claim, without citing controlling law, without addressing objections—the

statutory right Section 636(b)(1)(C) guarantees becomes unenforceable. Article Ill's protections

for litigants become meaningless. Erie's constitutional mandate becomes a nullity.

III.

THE DECISION BELOW NULLIFIES CONGRESS’S

MANDATORY COMMAND AND STRIPS LITIGANTS

OF THEIR STATUTORY RIGHT TO JUDICIAL REVIEW

Can a district court satisfy 28 U.S.C. Section 636(b)(l)(C)'s mandatory command

through complete judicial silence?

When objections are filed, "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

-24-

objection is made." 28 U.S.C. Section 636(b)(1)(C). Congress chose mandatory language—

"shall"—and specified the standard—"de novo determination."

In Thomas v. Am, 474 U.S. 140, 149-150 (1985), this Court held that objections "serve

the valuable purpose of allowing parties to focus the district court's attention on the dispositive

issues." A determination requires demonstrable judicial consideration.

The decision below holds that a district court satisfies Section 636(b)(1)(C) even when its order

never mentions the UCL claim, never cites California Business & Professions Code sections

17200 or 17208, never mentions the controlling California Court of Appeal decisions specifically

cited, never responds to the seven objections, and provides zero indication any review occurred.

If complete silence satisfies the statute, the word "shall" means nothing. Section 636(b)(1)(C)

becomes advisory rather than mandatory—a statutory right transformed into empty formality.

The decision effectively holds that the word "adopted" satisfies the statute's command. Every

district court could write: "Having reviewed the magistrate's report and plaintiffs objections, the

Court adopts the report." The statutory right becomes a right to have the district court write

"adopted"—nothing more.

IV. THE UNDENIABLE VIOLATION MAKES THIS CASE AN IDEAL

VEHICLE

This case presents the statutory question in its starkest form. Petitioner filed seven

specific objections supported by controlling California authority. Respondent filed no opposition.

The district court's twelve-page order contains zero words about the UCL claim.

The question is binary: Does complete silence satisfy Section 636(b)(l)(C)’s

command to "make a de novo determination"? No factual development is needed. This

provides the clean vehicle this Court needs.

-25-

V. THE DECISION CONFLICTS WITH THIS COURT’S

PRECEDENTS REQUIRING STRICT ENFORCEMENT OF

CONGRESSIONALLY MANDATED STANDARDS OF REVIEW

When Congress specifies a standard of judicial review, courts must apply it as written—

without discretion to dilute, modify, or ignore it.

In Chandler v. Roudebush, 425 U.S. 840, 861-862 & n.37 (1976), this Court held that "by

specifying review de novo, Congress denied the district court discretion to consider the case in

any other manner." If courts lack discretion to consider a case in any other manner, they lack

discretion not to consider it at all.

In United States v. First City National Bank, 386 U.S. 361, 368 (1967), this Court held:

"The critical words seem to us to be 'de novo' and 'issues presented.' They mean to us that the

court should make an independent determination of the issues." Complete silence cannot

constitute "independent determination."

In United States v. Raddatz, 447 U.S. 667, 676 (1980), this Court held that Congress used

"determination" rather than "hearing," believing "Art. Ill was satisfied if the ultimate

adjudicatory determination was reserved to the Art. Ill officer." Adoption through silence

delegates that determination to the magistrate. Complete silence abandons the independent

determination the statute requires

VI. THE CONSTITUTIONAL STAKES HEIGHTEN THE NEED

FOR REVIEW

The statutory violation implicates constitutional principles warranting this Court's

attention. Article Ill's tenure and salary provisions are "basic constitutional protections designed

in part for the benefit of litigants." Glidden v. Zdanok, 370 U.S. 530, 536 (1962). Hamilton

explained: "that inflexible and uniform adherence to the rights of the Constitution, and of

individuals, which we perceive to be indispensable in the courts of justice, can certainly not be

expected from judges who hold their offices by a temporary commission." The Federalist No. 78,

at 470-471.

-26-

This diversity case raises an additional dimension. Petitioner's objections cited

controlling California Court of Appeal authority addressing the UCL claim—authority the

magistrate and district court ignored through silence. Under Erie R.R. Co. v. Tompkins, 304 U.S.

64, 78 (1938), federal courts sitting in diversity must apply state law: "Except in matters

governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is

the law of the state." Disregarding binding state appellate decisions through silence exercises

lawmaking power the Constitution denies federal courts.

VII. THE QUESTION REQUIRES THIS COURT’S DEFINITIVE

RESOLUTION

The decision below holds that complete silence satisfies Congress's mandatory command.

This case is the ideal vehicle. The facts are undisputed: seven objections filed, controlling

California authority cited, no opposition from respondent, complete district court silence. The

legal question is pure. The violation is undeniable—zero words about the claim, zero citations to

governing statutes, zero response to objections.

If this does not violate the statute, nothing does. The word "shall" must mean something.

A "determination" must involve analysis. Courts cannot satisfy a statute commanding them to

"make a de novo determination" by saying nothing.

CONCLUSION

For the forgoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,

Dated: December 2, 2025

PETITIONER IN PRO PER

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