Petition for Writ of Certiorari — Foreman v. Collins
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FILED
APR & Wee
m ALEXANDER L. STEVAS.
CLERK
In The
Supreme Court of the United States
October Term, 1983
WILLIAM FOREMAN, VINCENT PILLETERS and
TERRY WARDEN,
Petitioners,
VS.
HOWARD V. COLLINS,
Responcent.
and
UNITED STATES OF AMERICA,
Intervenor.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
JOHN D. DOYLE
MONROE COUNTY ATTORNEY
NIRA T. KERMISCH
Counsel of Record
307 County Office Building
39 West Main Street
Rochester, New York 14616
Telephone: (716) 428-5280
Counsel for Petitioners
(RSET LL Lc Le, ac ee Le a a eae TESTES TR
Daily Record Corporation
Rochester, New York (10471)
QUESTION PRESENTED
Whether the Magistrate’s Act, 28 USC §636(c) is unconstitu-
tional.
TABLE OF CONTENTS
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ARGUMENT FOR ALLOWANCE OF
THE WRIT OF CERTIORARI
28 USC §636(c) is Unconstitutional ..................
Magistrates Lack Article III Attributes...............
Magistrates are not Adjuncts of the District Court .....
Power of Article III Judges to hear cases is part of the
framework of government not a litigant’s personal
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APPENDIX
1. Decision of U.S. Court of Appeals for the Second Cir-
cuit dated February 22, 1984......................
2. Decision and Order of the U.S. District Court entered
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3. United States Magistrates Act.................008.
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TABLE OF CITATIONS
Cases: | Page
oe ee Lk es a. i)
Chandler v. Judicial Council 398 U.S. 74 (1970) ....... 1]
Crenmsmaw vw OS. 105.Ct. 431, 432... 0.0. cece ceee. 7
ee nk ay » Sr 13, 14, 16
DeCosta v. CBS 520 F.2d 499 cert denied 423 U.S. 1073 14
Gidaen Co. v. Zdanok 370 U.S. 530... 0... cece eens 19
Hampton & Co. v. UG. Z76 U.S. 394 . 0. ce eee 9
ST ek che cee basen dee seecssess 9
LaBoy v. House Leather Co. 352 U.S. 249, 259 ........ 13
po a) ey ee ne 15
Northern Pipeline Cons. Co. v. Marathon Pipeline Co.
eR Oe ere Tee eee ea ie Bi, 13,77
Pacemaker Diagnostic Clinic slip opinion 2/16/84 ...8, 13, 16
T-PO. Inc. v. McMillen 460 F.2d 357... ...........6.. 7
Toth v. Quarles 350 U.S. 11, 16, 76 S.Ct. 1, 4, 11 L.Ed. 8
EE SES TS ESE ae 6
ES 9
a SE 8 |) Err 10, 14, 20
U. S. v. Saunders 641 F.2d 659 cert. denied 452 U.S. 918. 6
U.S. v. Will 449 U.S. 218-221, 101 S.Ct. 482-483 ....... 6
Wharton-Thomas v. U.S. 721 F.2d 922 ............45. 16
United States Constitution:
Article III 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 16, 17, 19, 20, 21, 22
EE ee a 4,5, 14
en ares, | err 9
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Statutes
Me a ry Oe ere eres ee 18
ee SPS 65.550 de OAR kode Kb se obekcenecan 17,19
OP TEE ESET Eee TT See Tree Tre 15, 20
OR ere rer reer err 18
PP Aes GUND sever civctcnss i, 2, 3, 4, 13, 14, 16, 18, 19, 22
Ss EGA 64 sp cele he > NWA Renesas aenes 2
PE VAs bhcl Acdeatebes be pemacauneede a 10
Other:
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Federal Rules of Civil Procedure §53(e)(2) ............ 12
Proceedings H. Rep. No. 1364, 95th Cong. 2d Sess. 12
NER eee Ae euied Win cae s bu wed ue oes 21
Proceedings S. Rep. No. 74, 96th Cong. Ist Sess. I ..... 18
Senate Committee on the Judiciary, S. Rep. No. 371,
EE OP POT eee ree 7
Tee Femeraet NO. €7, BO. 299 onc ca ccccnsccevccccs 8,9
No.
In The
Supreme Court of the United States
October Term, 1983
WILLIAM FOREMAN, VINCENT PILLETERS and
TERRY WARDEN,
Petitioners,
VS.
HOWARD V. COLLINS,
Respondent.
and
UNITED STATES OF AMERICA,
Intervenor.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
The Petitioners respectfully request that a writ of certiorari is-
sue to review the judgment and opinion of the United States
Court of Appeals for the Second Circuit entered in this proceed-
ing on February 22, 1984.
OPINIONS BELOW
The following opinions and orders of the lower courts are in-
cluded in the Appendix to the Petition:
1. Opinion of the United States District Court, Western Dis-
trict of New York rendered November 8, 1983.
2. Opinion of the United States Court of Appeals for the Sec-
ond Circuit, rendered on February 22, 1984, in this action.
to
JURISDICTION
The opinion of the Court of Appeals was entered on February
22, 1984. Jurisdiction to review the judgment of the Court of Ap-
peals is conferred on this Court by 28 U.S.C. §1254(1).
GOUNDS FOR REVIEW
The significance of this petition for writ of certiorari to the
Court of Appeals for the Second Circuit is substantial. The ques-
tion to be decided is whether Congress can authorize Article III
judges to delegate the judicial power of the United States, includ-
ing entry of final judgment to individuals who lack Article III at-
tributes. At the present time, appeals dealing with the question of
the constitutionality of 28 USC §636(c) are pending in most of
the circuits and have been decided in three.
In August, 1983, a panel of judges in the Ninth Circuit declared
the statute unconstitutional. On a rehearing en banc, however,
the Ninth Circuit reversed itself, three judges dissenting, ' and de-
clared the statute constitutional. In addition, the Second and
Third Circuits upheld the constitutionality of the statute.
An additional ground for review is that the Second Circuit’s de-
cision is also contrary to the court’s holding in Northern Pipeline
Cons. Co. v.Marathon Pipeline Co. 102 S.Ct. 2858.
STATEMENT OF THE CASE
In 1975, respondent, Howard V. Collins commenced a civil
rights action against the petitioners. In July of 1981 Magistrate
Maxwell contacted the attorneys for the parties and advised them
that he was permitted to preside at trials and asked the attorneys
whether they would consent to have the case tried before him.
Neither attorney agreed at that time.
Magistrate Maxwell then followed that telephone conversation
' None of the judges who participated in the original decision, participated in
the rehearing en banc.
with a letter, dated July 10, 1981, to which he attached consent
forms. Again, the attorneys did not respond.
The letter was then followed by another telephone call from
Magistrate Maxwell regarding the parties’ consent to litigate be-
fore him. Eventually, in September of 1981 both parties’ signed
the consent to proceed before a United States Magistrate. Prior
to the trial by Magistrate Maxwell, the petitioners attempted, on
several occasions, to rescind their consent to have the trial con-
ducted by the Magistrate, but their requests and motions were de-
nied. A trial was then held in December of 1981 in which Magis-
trate Maxwell presided and a jury verdict was returned against
the petitioners and for the respondent.
The petitioners appealed to the District Court which upheld the
Magistrate’s decision. Thereafter, petitioners moved for leave to
appeal to the Second Circuit. The motion for leave to appeal was
denied by the U.S. Court of Appeals in August, 1983.
Petitioners then moved in District Court to vacate the judg-
ment on the ground that the judgment was void on the ground
that 28 USC §636(c) was unconstitional. The District Court de-
nied the motion and the petitioners then appealed to the U.S.
Court of Appeals for the Second Circuit and argued that: a) the
judgment was void because 28 USC §636(c) was unconstitu-
tional; and, b) there was no voluntary consent to litigate the mat-
ter before Magistrate Maxwell. The Second Circuit upheld the-
constitutionality of the statute, and found the consent to be
voluntary.
In view of the fact that the question raised by this case is pres-
ently pending in almost all circuits in the nation, it appears that
this is a very important question which should be determined by
the Supreme Court.
Of the circuits which decided, the Ninth Circuit judges are di-
vided on the question of the constitutionality, however, in the
Third Circuit, two panels’ held the statute to be constitutional.
2 At least one of the judges who participated in the first panel also participated
in the second.
SUMMARY OF ARGUMENTS
1. 28 USC §636(c) Is Unconstitutional.
Magistrates are not Article III judges and, therefore, may not
enter final judgments.
Delegation of authority to magistrates to finally determine
questions of law and enter final judgments alters the balance of
powers of the three branches of government.
Magistrates are not “‘adjuncts” of the district court.
Magistrates who are appointed by judges and whose salaries
may be diminished during their term are subject to pressures by
the judiciary, executive and legislative branches of government.
Article III §1 establishes part of framework of government,
rather than confers a personal right on the litigants.
2. Voluntary Consent.
Pressures by the courts and magistrates to litigate before a
magistrate constitute coercion.
ARGUMENT FOR ALLOWANCE OF
THE WRIT OF CERTIORARI
28 USC §636(c) IS UNCONSTITUTIONAL
The Second Circuit held that as long as the parties consent, the
power to decide any civil case in the district courts of the United
States may be exercised by individuals who are not Article III
judges. The Second Circuit bases its holding on several assump-
tions which petitioners believe are erroneous. The first assump-
tion is that under the constitutional system the provisions of Ar-
ticle III §1 confer a personal or due process right on the litigants
rather than establish part of the framework of government.
Based on this assumption, the court held that the parties can stip-
ulate to permit a non-Article III individual to exercise the judicial
power of the United States. The second assumption is that magis-
trates are “adjuncts” of the district court. The third assumption
was that magistrates, who are appointed by the district court
judges for a term of office, whose salaries may be diminished
during their term, and those positions may be abolished, are not
subject to pressures by the executive and legisiative branches and
have the independence that the Constitution is designed to en-
sure. The fourth assumption is that the consent to atrial before a
magistrate is voluntary no matter what the pressures put upon
the individuals to consent to trial and entry of final judgment by a
magistrate, as long as such pressures are not open threats of de-
lay, or costs.
MAGISTRATES LACK ARTICLE III
ATTRIRUTES
United States Constitution, Article III, section 1 states:
“The judicial Power of the United States, shall be vested
in One supreme Court and such inferior Courts as the Con-
gress may, from time to time, ordain and establish. The
Judges, both in the supreme and inferior Courts, shall hold
their Offices during good Behavior, and shall, at stated
Times, receive for their services a Compensation, which
shall not be diminished during their Continuance in Of-
fice.”
The U. S. Supreme Court in the case of Northern Pipeline
Const. Co. v. Marathon Pipeline Co. 102 S.Ct. 2858 decided that
judges who are not Article III judges may not exercise certain
powers. The court stated at page 2865:
“The judicial power of the United States must be exercised
by courts having the attributes prescribed in Art. III. Those
attributes are also clearly set forth:
‘The Judges, both of the Supreme and Inferior Courts,
shall hold their Offices during good behavior, and shall,
at stated Times, receive for their Services, a Compensa-
tion, which shall not be diminished during their Continu-
ance in Office’ Art. III, §I.
The ‘good Behavior’ Clause guarantees that Art. III judges
shall enjoy life tenure, subject only to removal by impeach-
ment. 7oth v. Quarles, 350 U.S. 11, 16, 76 S.Ct. 1, 4, 100
L.Ed. 8 (1955). The Compensation Clause guarantees Art.
III judges a fixed and irreducible compensation for their
services. United States v. Will, supra, 449 U.S., at 218-221,
101 S.Ct., at 482-483. Both of these provisions were incor-
porated into the Constitution to ensure the independence of
the judiciary from the control of the executive and legisla-
tive branches of government.”
By contrast, federal magistrates are not appointed for life,
must retire at age 70, may be removed from office and their office
may be terminated if the judicial conference decides that the of-
fice is no longer needed. Neither are their salaries protected.
_ Thus, the criteria applied in determining whether judges are Ar-
ticle III judges or not do not fit the magistrates, and there is no
question that magistrates are clearly not Article III judges.
United States v. Saunders 64| F.2d 659 cert. denied 452 U.S. 918.
Article III judges receive life tenure upon appointment, while
magistrates are appointed for eight year terms, and must retire at
age 70. The judges’ salaries are protected while in office, while
magistrates’ salaries may be diminished by the judicial confer-
ence during their term, provided they do not fall below the magis-
trate’s salary at the commencement of his term.’ Additionally,
magistrates may be removed from office during a term for in-
competence, misconduct, neglect of duty or physical or mental
disability, while a judge may be removed only by impeachment.
A sitting magistrate’s office may also be terminated if the judicial
conference decides that the office is no longer needed. Of course,
Congress can always repeal the Magistrate’s Act if it so chooses.
The Second Circuit touched upon the Article III requirements
in its discussion of the question of separation of powers, but did
not address the serious problems which arise, nor did it address
the question of the importance of an independent judiciary,
which independence depends upon their security. The security
Obviously, Congress can diminish their salaries at any time.
provided to members of the judicial branch helps to attract well
qualified persons to the Federal bench and the guarantee of life
tenure insulates the individual judge from improper influences
not only by other branches, but colleagues as well, Northern
Pipeline Id. at 2865 n.10., and thus promotes judicial individual-
ism. The Federal Judicial was designed by the Framers of the
Constitution to stand independent so as to maintain the checks
and balances of the constitutional structure and also io guarantee
that the process of adjudication itself remains impartial. The ma-
jority in the Northern Pipeline case stated at page 2864:
“Hamilton explained the importance of an independent
judiciary:
“Periodic court appointments, however regulated, or by
whomsoever made, would, in some way or other, be fatal
to (the courts,) necessary independence’”’.
Any appointment for a definite time or during good behav-
ior does not give the appointee a vested right or interest in his
office of which Congress cannot deprive him. Such appoint-
ment is a privilege revocable by the legislature at will. Cren-
shaw v. U.S. 10 S.Ct. 431, 432.
The magistrates, however, are appointed periodically by the
district court and, therefore, there exists a danger not only of
potential abuses of assignment power by individual judges
who, in misguided attempts to expedite the business before
them, might unwittingly delegate to magistrates responsibili-
ties that are more properly discharged by the judge (Senate
Committee on the Judiciary, S.Rep. No. 371, 90th Cong. Ist
Session, 25-27 as quoted in 7:RO. Inc. v. McMillen 460 F.2d at
357), but also there exists the clear danger that a magistrate,
who is appointed by a judge to a term of office, will not deliver
an unpopular opinion if the results of such decision were cur-
tailments of his authority, future reference or failure to be re-
appointed.
Not only can magistrates not be reappointed by the district
court judges, but their offices can also be terminated by the
judicial conference and their salaries may be diminished dur-
ing their term. Thus, magistrates’ salaries may increase if their
decisions are favorable but decrease if their decisions are unfa-
vorable and the fear of such fluctuations in salary may influ-
ence their decisions. As the Framers stated:
“‘Next to permanency in office, nothing can contribute
more to the independence of the judges than a fixed pro-
vision for their support . . . in the general course of hu-
man nature, a power over a man’s subsistence amounts to
a power over his will”’ The Federalist, No. 79
(A.Hamilton) page 491. (As cited in Northern Pipeline
Cons. Co. v. Marathon Pipeline Co., 102 S.Ct. at 2865.)
Unlike magistrates, Article III judges are appointed for life
and their compensation is fixed and irreducible and both of
the provisions were incorporated into the Constitution to en-
sure the independence of the judiciary from the control of the
executive and legislative branches of the government.
Magistrates may also be called upon to determine the consti-
tutionality of actions taken by the other branches of govern-
ment. Inasmuch as magistrates depend on Congress and the
judiciary, the exercise of judicial power by them places the
constitutional system at risk.
The Second Circuit felt that authorizing magistrates to exer-
cise the judicial power of the United States, does not affect the
allocation of power between Congress and the District Courts.
However, in the Magistrate’s Act, Congress has delegated to
judicial councils the power to create magistrate positions and
thereby abdicated its constitutional responsibility. In actual
terms, this abdication reduces the pressure on Congress to cre-
ate more Article III judgeships, and increases the pressure on
district courts to escalate the use of magistrates. (Dissent in
Pacemaker Diagnostic Clinic slip opinion 2/16/84, p. 803).
The fundemental principles of the government as estab-
lished by the Constitution is that the powers of the three:
branches of government be separate from one another.
James Madison, writing in support of the separation of
powers in The Federalist No. 47, p. 299, stated that where the
power of judging joined with the legislative, the life and liberty
of the subject would be exposed to arbitrary control, for the
judge would then be the legislator.
Justice Taft writing for the court in Hampton & Co. v.
United States 276 U.S. 394, after discussing the general princi-
ple of the separation of powers stated:
“(i)t is a breach of the national fundamental law if Con-
gress gives up its legislative power and transfers it to the
President or to the judicial branch.” /d. at 406.
The Magistrate’s Act, however, transfers to the judicial con-
ference the right to create positions which should be created by
Congress.
Further, the Constitution does not permit '™nosing duties of
nonjudicial nature on Article III judges, Uniieu s.ates v. Fer-
reira 54U.S. 40, Hayburn’s’ Case 2 U.S. 409, and it is clear that
the opposite is also true, that the judicial power may not be
conferred upon individuals who are not Article III judges.
Not only does the Magistrate’s Act change the balance of
power between Congress and the judiciary, it also removes the
appointment power of the President and the confirmation
power of the Senate pursuant to Article II §2. They are de-
prived of the opportunity to appoint those individuals whom
they deem fit to exercise the judicial powers of the United
States. There is no question that magistrates are officers of the
United States as they exercise significant authority and, there-
fore, must be appointed in the manner prescribed by the Con-
stitution. Buckley v. Valeo 96 S.Ct. 612, 685. Thus, the
changes in the balance of power affect also the executive
branch, not only the legislative branch.
10
It is accepted that rights created by Congress may be adjudi-
cated before particularized tribunals created by Congress to
perform the specialized adjudicative tasks related to that right.
However, no comparable justification exists when the right be-
ing adjudicated is not of congressional creation. In such a situ-
ation substantial inroads into functions that traditionally have
been performed by the judiciary cannot be characterized
merely as incidental extensions of Congress’ power to define
rights that it has created. Rather, such inroads suggest unwar-
ranted encroachment upon the judicial power of the United
States which the Constitution reserves for Article III courts.
Northern Pipeline at 2878.
42 USC§1983, which was the basis for the complaint in the
case at bar, does not create a right, but creates a remedy when
other rights have been violated, be they federal or state created
rights, and thus adjudication of litigation based on 42
USC§1983 does not fall within the exception stated by the
Northern Pipeline court.
The Second Circuit recognizes the problem, and also recog-
nizes that the Supreme Court in Northern Pipeline, supra, and
in Raddatz decided that magistrates can conduct part of the
proceedings provided “the ultimate decision-making author-
ity . . clearly remained with the district court” 458 U.S. at 79.
Yet , it determined that even though “ultimate decision-making
authority” is a sufficient condition for a finding that a chal-
lenged scheme does not offend the policy of separation of
powers, it is not a necessary condition for such a finding. This
analysis clearly fails to follow the rationale in Northern Pipe-
line and Raddatz which followed a long line of cases in which
the court upheld the magistrates and special master’s schemes
only because the ultimate decision was left in the hands of Ar-
ticle III judges.
Concerns have been voiced by many regarding the question
and the implications of judges controlling other judges outside
EE
1]
the appellate process. Judge Irving Kaufman of the Second
Circuit, arguing that permitting judges to remove other judges
from office frustrates judicial individualism, stated that judi-
cial independence is most crucial and most vulnerable when
the only hope of protection lies in clear rules setting forth the
bright lines that cannot be traversed. Chilling Judicial Inde-
pendence 88 Yale L.J. 681 751 (1979). The Supreme Court con-
sidered the issue in Chandler v. Judicial Council 398 U.S. 74
(1970). There, the court recognized the need to preserve the
decision-making function independent of the influence of any
other judge and this recognition was reflected in all opinions in
the case. The majority in that case denied a district court
judge’s petition for extraordinary relief from a judicial council
order, in which he had acquiesced, withdrawing case assign-
ments. The chief justice wrote:
“There can, of course, be no disagreement among us as
to the imperative need for total and absolute indepen-
dence of judges in deciding the cases or in any phase of
the decisional function.” /d. at 84.
Justice Harlan’s concurrence also noted the basic responsi-
bility of judges for “final adjudication of lawsuits” /d. at 110
and Justice Douglass, in a dissent, stated:
“Once a federal judge is confirmed by the Senate and
takes his oath, he is independent of every other judge. He
commonly works with other federal judges who are like-
wise sovereign.” Jd. at 136.
In our case, the Second Circuit, as did the majority of the
Ninth Circuit, in the en banc decision, determined that even
though magistrates are totally dependent upon other judges
for their appointments and upon Congress and the judicial
yw conference for their salary, they are still independent of any
pressures. The en banc panel of the Ninth Circuit went even
further. They determined that in order to overcome the Article
III requirements, there must be both the appearance and the
reality of control by Article III judges over the interpretation,
12
declaration and application of Federal Law, and that the re-
quired control must be more than simple appellate review.
Pacemaker’s majority opinion (p. 797 of slip opinion).
Such control over the magistrates removes any vestige of in-
dependence they may have, and together with the pressures of
appointment and salary, clearly places in jeopardy their ability
to render independent decisions.
Furthermore, Congress has the duty to vest the judicial
power of the United States, and to vest the whole of the judi-
cial power, which under the Constitution, must be vested in
Article III judges. If this interpretation does not prevail, Con-
gress could refuse to vest the judicial powers in Article III
judges, and instead attempt to vest the power in magistrates
who are obligated to Congress not only for their salaries but
also for their positions.
Clearly, Congress, if it chooses, can impact on the judiciary
by appointing a large number of magistrates over whom it will
have control, rather than appoint independent and secure Ar-
ticle III judges, whom it cannot control, and thus frustrate the
separation of powers which is the cornerstone of the Constitu-
tion.
MAGISTRATES ARE NOT ADJUNCTS
OF THE DISTRICT COURT
The Second Circuit has implied in its decision that magis-
trates are adjuncts of the district court. The court compared
magistrates to special masters to whom the district court
judges may refer pending civil cases for taking evidence and
conducting hearings; such special masters must file with the
district court a report containing findings of fact and conclu-
sions of law. In non jury cases, the district judge must accept
the magistrate’s findings of fact unless they are clearly errone-
ous (Federal Rules of Civil Procedure, §53(e)(2)). The master’s
13
legal conclusions, however, are not entitled to special differ-
ence. LaBoy v. House Leather Co. 352 U.S. 249, 259 held,
however, that reference to masters shall take place only under
“exceptional circumstances”. The Second Circuit, conceding
that the analogy to masters is not perfect because masters can-
not order the entry of final judgment, nevertheless implies that
because the statute permits reference to masters upon consent
of the parties that, therefore, reference to magistrates is also
proper as they are adjuncts to the court. The Second Circuit,
however, fails to explain how they arrived at the conclusion
which is in direct contradiction to the decision in the Northern
Pipeline case, supra.
The majority in the Northern Pipeline case defined and reit-
erated its view of the adjunct system. The court stated specifi-
cally that the functions of the adjunct must be limited in such a
way that the essential attributes of judicial power are retained
in the Article III court. The court then stated:
“Thus, in upholding the adjunct scheme challenged in
Crowell, the court emphasized that ‘the reservation of
full authority to the court to deal with matters of law pro-
vides for the appropriate exercise of the judicial function
in this class of cases.’ And, in refusing to invalidate the
Magistrate’s Act at issue in Raddatz, the court stressed
that under the congressional scheme ’(t)he authority -
and the responsibility - to make an informed, final deter-
mination . . . remains with the judge’ 447 U.S. at 682...
the statute’s delegation of power was therefore permissi-
ble since ‘the ultimate decision is made by the district
court’.” 447 U.S. at 683. [emphasis supplied]. /d. at 2876.
Interestingly, the majority of the Pacemaker case, supra, in
an attempt to find the statute constitutional, stated that under
28 USC §636(c) Article III courts retain full authority over
questions of law. Presumably, the majority was discussirig ap-
peals as during the trial conducted, or on motions, the magis-
trates decide all questions of law without reference to the Ar-
ticle III judge, and they further enter final decisions.
14
The question also arises whether Congress can authorize
judges to delegate their duties to magistates.
The language of Article III §1 does not permit a delegation
of powers by the judges to non-Article III individuals.
The Second Circuit determined, however, that reference to
Magistrates under §636(c) does not violate the Article III ban
against the delegation of judicial power to other than Article
III judges.
The court attempts to justify its position by relying on the
consent of the parties. However, if the Constitution bans such
delegation, then the parties cannot, by consent, confer juris-
diction on the magistrates if none existed ab initio.
The Second Circuit, as does the majority in the Pacemaker
en banc decision, relies on a line of old cases to support their
position that delegation of judicial power to non Article III
judges is permissible. The cases started with Crowell v. Benson
285 U.S. 22 through U.S. v. Raddatz 100 S.Ct. 2406. In the lat-
ter case, the court held that the most important factor in up-
holding the power of the magistrate to hold a hearing and
present to the court the proposed findings of fact and law is
that:
(d)elegation does not violate Article III so long as the ulti-
mate decision is made by the district court.” (cites omit-
ted) Jd. 2416.
The Second Circuit concedes that none of the early cases
touched upon the question of the delegation of judicial power
which arises in this case. It did, however, discuss the decisions
which address the constitutionality of reference of cases to
magistrates. In support of its position, the Second Circuit cites
DeCosta v. CBS 520 F.2d 499 cert denied 423 U.S. 1073, in
which the First Circuit held that:
“It is constitutionally and statutorily permissible to refer
cases, with the consent of all parties, for ‘initial deci-
sions’.”’ Jd. at 507 - 508
15
There is no question that, by statute, it was permissible in
1975, as it is today, to submit matters to magistrates for initial
decisions but not for final determination as is the case in this
case. The Second Circuit also relies on Muhich v. Allen 603
F.2d 1247, a 1979 case which preceded the amendment to the
Magistrate’s Act, in which it was found permissible for a mag-
istrate to try a civil case when the district court retained its ju-
risdiction over the litigation as it had the power to conduct a de
novo review, and to invoke its exclusive authority to order the
entry of final judgment. Thus, it is clear that all the cases sup-
port the proposition that reference to a magistrate for initial
determination is permissible, provided that the ultimate deci-
sion and the entry of final judgment remain with the district
courts. Thus, the Second Circuit, even though it rejects the
reasoning in the cases which permit the delegation of power,
and even though it acknowledges that the criteria in each and
every one of those cases for upholding the constitutionality of
the limited delegation to magistrates was upheld because the
final determination remained with the district court, neverthe-
less stated that such condition was not relevant to the determi-
nation of the constitutionality of 28 USC §636.
Under 28 USC §636 the district court has no residual respon-
siblity for those cases which are referred to magistrates, and
the magistrate then acts as would a judge who had been ap-
pointed by the President and confirmed by the Senate.
In Northern Pipeline the majority rejected an argument that
Article III requirements are satisfied so long as some degree of
appellate review is provided and determined that such argu-
ment is directly contrary to the text of the Constitution, and
further stated that the constitutional requirements for the ex-
ercise of the judicial power must be met at all stages of adjudi-
cation, and not only on appeal, where the court is restricted to
16
considerations of law, as well as the nature of the case as it had
been shaped at the trial level. /d. at 2879, n. 34.*
Interestingly enough, the three circuits which upheld the
constitutionality of 28 USC §636(c) relied on different and
sometimes conflicting grounds. The Third Circuit in
Wharton-Thomas v. U/S. 721 F.2d 922, held that the con-
sent of the parties went not to the jurisdiction of the district
court as an entity, but to the judicial officer within the court
who conducted the trial and, therefore, it did not offend the
Article Iil provisions. Furthermore, the Third Circuit i
Wharton-Thomas, supra, completely ignored the decisions
of the Supreme Court which dealt with the question of the in-
dependence of the judges. The Ninth Circuit, in the Pace-
maker case, in the en banc decision held that because Article
III judges provide continuous control over the magistrates,
the authority remains in the District Court and thus does not
offend the Article III requirements. The majority there went
so far as to state that there must be active supervision by Ar-
ticle III judges over magistrates and that such continued and
vigilant supervision by Article III judges is, of course, essen-
tial to the integrity of the system and they must be careful to
guard against any compulsion to induce consent. As the dis-
sent in that case points out, if the Article III judges had the
time to closely supervise the magistrates as the majority thinks
they should, they would not need the magistrates to conduct
the trials as they then would have the time to try the cases
themselves. As a practical matter, once a case is delegated to a
magistrate, the Article III judge has no connection whatsoever
with that case unless it comes before him on appeal, nor will
the judge entertain any motions or any discussion of the case.
4 That question had been addressed in Crowell where the court rejected the ar-
gument and stated that “[t]o accept such a regime would be to sap the judicial
power as it exists under the Federal Constitution, and to establish a government
of bureaucratic character alien to our system, wherever fundamental rights, de-
pend, as not infrequently they do depend, upon the facts, and finality as to facts
becomes in fact finality in law.” 285 U.S. at 57.
17
Thus, no supervision, continuous or otherwise exists by Ar-
ticle III judges. The Second Circuit did not follow either of the
two opinions, but, rather, found that as magistrates are ad-
juncts of the district courts, the delegation of the power to en-
ter final judgments does not offend the Article III require-
ments.
Prior to the 1979 amendment to the Magistrate’s Act, magis-
trates were allowed to make findings of facts and law pro-
vided, however, that the final determination was made by the
judge. *
The 1979 amendment to the Magistrate’s Act removed the
authority of rendering the ultimate decision from the district
courts and placed it in the hands of the magistrates, and thus
the magistrates no longer act as adjuncts, as they were given
the authority and the responsibility by statute to enter final
judgment instead of the district court, and their powers, when
conducting a trial, are the same as those of the district judge.
Nor does the statute permit the district court to hold a de novo
review of the proceedings before the magistrate. The Northern
Pipeline court, however, reiterated the fact that “critical to the
court’s decision (in Raddatz) to uphold the Magistrate’s Act
was the fact that the ultimate decision was made by the district
court” Jd. 2877. If this important factor is eliminated, then the
Magistrate’s Act cannot be upheld.
POWER OF ARTICLE Ill JUDGES
TO HEAR CASES IS PART OF
THE FRAMEWORK OF GOVERNMENT NOT A
LITIGANTS PERSONAL RIGHT
The Magistrate’s Act of 1968, 28 USC §631-639, created
magistrate’s positions. The 1968 act created the positions with
an eight year term of office and empowered district courts to
appoint the magistrates. The act authorized the magistrates to
perform the functions previously carried out by the U. S. com-
BEST AVAILABLE COPY
18
missioners and to serve as special masters in civil actions, to
assist the district court in pre-trial and discovery proceedings
in civil and criminal actions, to make preliminary review of pe-
titions for habeas corpus and to perform such additional du-
ties as are not inconsistent with the Constitution and laws of
the United States.
The 1968 Act also provided for the magistrate’s removal
during aterm of office for incompetency, misconduct, neglect
of duty or physical and mental disability. Only the judges of
the district court in which the magistrate serves could exercise
removal authority (28 USC § 631(h)), but the judicial confer-
ence could abolish the magistrate’s position.
In 1976 Congress amended the Magistrate’s Act, expanding
the duties and powers of magistrates. The 1976 amendment
empowered the magistrates to determine nondispositive pre-
trial motions, subject to review by a district judge, and also
gave magistrates the authority to make findings and recom-
mendations on dispositive pre-trial motions and in prisoner
cases. A district judge would then conduct a de novo review of
those portions of the magistrate’s report or proposed findings
or recommendations to which a party objected (28 USC
§636(b)(1)).
In 1979 Congress enlarged the duties and powers of magis-
trates even further. It provided that, upon the consent of the
parties, and when specially designated to exercise such author-
ity by the district court in which he serves, a magistrate could
also conduct all proceedings in a jury or non-jury civil action
and enter final judgement, (28 USC §636(c)). When enacting
the 1979 Magistrate’s Act, Congress’ object was “to amend
the current jurisdictional provisions for U. S. Magistrates. . .
in order to further clarify and expand the jurisdiction of U. S.
Magistrates and improve access to the federal courts for the
less advantaged.”’ S. Rep. No. 74 96th Cong. Ist Sess. I, re-
printed in 1979 U.S. Code Cong. A.d. News 1469, 1469. It ap-
19
pears, therefore, that Congress attempted to create special
judgeships outside the Article III framework for the benefit of
the less advantaged, and sidestep the procedures contained in
the Constitution.
The Magistrate’s Act, 28 USC §631-639, authorizes the judi-
cial branch to create new judicial offices, appoint those who
will occupy the offices and then delegate to the appointees the
authority to exercise the judicial power of the United States.
(28 USC §636(c)).
The basis of the argument that parties, by consent, can waive
their right to trial by an Article III judge is that the right to an
Article III is a due process right and, therefore, waivable like
any other due process right. The question, therefore, arises
whether the right to an Article III judge is a due process right
only, or whether it is part of the framework of government
which cannot be waived, and, therefore, the consent of the
parties cannot confer jurisdiction on the magistrate.
in Glidden Co. v. Zdanok 370 U.S. 530, the Court reviewed
cases in which a judge of the court of claims sat by designation
on a panel of the Second Circuit and a judge of the Court of
Customs and Patent Appeals presided by designation over a
trial in the Federal district court. The Court found no constitu-
tional infirmity as it held that those courts has been reconsti-
tuted as Article III courts. The court indicated that Article I
judges may not bind litigants in Article III] no matter how
fairly they run the proceedings. The plurality specifically
praised the qualifications, standards and impartiality of the
judges involved. It is clear that had the court considered that
the right to trial before an Article IJI judge as only a due proc-
ess right, the plurality would have terminated its discussion by
noting the fair proceedings in the court below, and would not
have gone on to determine that the proceedings were valid be-
cause the judges of the Court of Claims and the Court of Cus-
toms and Patents were designated as Article III courts. The
20
same conclusion may also be drawn from the Supreme Court’s
opinion in United States v. Raddatz 447 U.S. 667 where the
court noted that having magistrates conduct suppression hear-
ings satisfied due process by providing a hearing appropriate
to the nature of the case. But the court did not terminate its
inquiry there, but continued to discuss the Article III objec-
tions to magistrates holding such hearings, and the court,
then, concluded that the Article II] demands are satisfied
where “the ultimate decision is made by the district court” /d.
at 683. In the case at bar, the magistrate conducted the trial,
instructed the jury on the law and entered the final judgment
thus depriving the Article III judge of making the ultimate de-
cision.
The cases thus make clear that a trial by Article III judge is
more than a due process right but is part of the framework of
government.
The language of Article III itself supports the position that it
intended to create a frame of government rather than a per-
sonal right, and such frame of government cannot be altered
by the parties’ consent.
VOLUNTARY CONSENT
There is no question that 28 USC §636 demands that consent
to trial by magistrates must be voluntary.
The question arises, however, as to what constitutes a volun-
tary consent.
The Second Circuit held that as long as there was no open
threat of delay or costs, repeated calls by a magistrate and a
written communication, do not constitute pressure on the liti-
gants. Such position is unrealistic. A litigant, who keeps re-
ceiving communications from a magistrate, who invites the
parties to litigate before him, on more than one occasion in the
same matter, brings pressure on the litigant who is then hesi-
rere
21
tant to refuse for fear of what might happen should the district
judge be advised of such refusal. The district court can, in at-
tempt to pressure trials before magistrate, deny the balking lit-
igant adjournments, deny his motions, or otherwise create dif-
ficulties.
The majority in the en banc decision in the Pacemaker case
and the Third Circuit in the Wharton-Thompson case recog-
nized that pressure on parties to submit cases increases in di-
rect proportion to the number of magistrate positions.
The House Report on the Act indicated that the intention
was to reserve to Article III judges complicated matters (H.
Rep. No. 1364, 95th Cong. 2nd Sess. 12 (1978).
The courts have been following this recommendation and
assigned certain types of cases to the magistrate. This ap-
proach, however, does not comply with the intentions of the
Framers of the Constitution that all cases be decided by Article
III jduges, not only those which they deem more important.
It appears that Congress, in an effort to make the Federal
Courts more accessible to a large number of people, has
moved away from the intent of the Framers of the Constitu-
tion and created a bureaucracy which was not contemplated,
and which applies pressures, directly or indirectly, on litigants
to avail themselves of it.
Surely, a litigant faced, for example, with demands by a
magistrate to litigate before him, will not dare to prejudice his
case by refusing. No safeguards have been established to pro-
tect the one refusing from possible ramifications arising from
such refusal. Inasmuch as no determination has been made as
yet as to what constitutes coercion, the door is open to pres-
sures to be applied to litigants.
22
CONCLUSIONS
The question of whether 28 USC §636(c) is constitutional,
goes to fundamental questions of constitutional separation of
powers and whether the judicial power of the United States
may be delegated to non Article III individuals.
This very important question, presently pending in the ma-
jority of circuits merits a review by this court and the granting
of the writ of certiorari.
JOHN D. DOYLE, MONROE COUNTY ATTORNEY
NIRA T. KERMISCH
DEPUTY COUNTY ATTORNEY
(Counsel of Record)
Monroe County Attorney’s Office
307 County Office Building
39 West Main Street
Rochester, New York 14614
Telephone: (716) 428-5280
Counsel for Petitioners
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
oa
se
No. 693—August Term 1983
Argued December 12, 1983 Decided February 22, 1984
Docket No. 83-7938
=
HOWARD V. COLLINS,
Plaintiff-Appellee,
—and—
UNITED STATES OF AMERICA,
‘ Intervenor,
—_V—
WILLIAM FOREMAN, VINCENT PILLETERS
and TERRY WARDEN,
Defendants-A ppellants.
Before:
FEINBERG, Chief Judge,
OAKES and PIERCE, Circuit Judges.
Appeal from district court judgment denying appel-
lants’ motion to vacate judgment as void. Appellants
argue that 28 U.S.C. § 636(c), which allows magistrates
to conduct civil trials and enter final judgments upon the
consent of the parties, is unconstitutional.
Affirmed.
+
ALFRED P. KREMER, Rochester, NY, for Plain-
tiff-Appellee.
MICHAEL F. HERTZ, Attorney, Appellate Staff,
Civil Division, Department of Justice,
Washington, DC (J. Paul McGrath,
Assistant Attorney General, Joseph E.
diGenova, United States Attorney, Peter
R. Maier, Attorney, of Counsel), for
Intervenor.
NIRA T. KERMISCH, Rochester, NY (John D.
Doyle, of Counsel), for Defendants-
Appellants.
~
FEINBERG, Chief Judge:
Defendants William Foreman, Vincent Pilleters and
Terry Warden appeal from an order of the United States
District Court for the Western District of New York, John
T. Curtin, Ch. J., denying their motion under Fed. R.
Civ. P. 60(b)(4) to vacate a judgment against them secured
by plaintiff-appellee Howard V. Collins. The substantive
issues on appeal are whether the provision of the Federal
1828
De a
se
Magistrate Act of 1979, 28 U.S.C. § 636(c), that allows a
magistrate to try a civil case and enter a final judgment
upon the consent of the parties is constitutional and
whether appellants’ consent to such a trial was obtained
improperly.' For reasons given below, we hold that this
! 28 U.S.C. § 636(c) provides, in pertinent part:
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 al! 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 per-
suade 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 jurisdic-
tion 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
1829
“A3-
provision is constitutional and that appellants’ consent
was valid. Accordingly, we affirm the judgment of the
district court.
Incredibly, this appeal grows out of an incident that
occurred in February 1975 and was the subject of a
complaint under 42 U.S.C. § 1983 filed in the district
court later that year against the Sheriff of Monroe
County and four deputy sheriffs, employed in the
Monroe County Jail.’ For the purposes of this appeal it is
not necessary to set forth the facts extensively. It is
sufficient to say that the complaint alleged that while
appellee Collins was a prisoner in the Monroe County Jail
he was severely beaten by police officers, in violation of
his constitutional and statutory rights. The case lan-
guished until November 1981, when it was tried before a
magistrate and a jury. The jury awarded Collins $3,000 in
compensatory damages and $60,000 in punitive damages.
Pursuant to 28 U.S.C. § 636(c)(4), appellants appealed
from the judgment to the district court, which upheld the
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 con-
ference shall endeavor to make such appeal expeditious and inex-
pensive. The district court may affirm, reverse, modify, or remand
the magistrate’s judgment.
(5S) 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 motion, or under
extraordinary circumstances shown by any party, vacate a reference
of a civil matter to a magist*ste under this subsection.
2 The complaint also listed among the defendants two unnamed
deputy sheriffs. In January 1976, the action against the Sheriff and
one of the deputy sheriffs was dismissed.
1830
~Al.-
magistrate’s decision in an opinion filed in April 1983.
Appellants then sought leave to appeal to this court,
under 28 U.S.C. § 636(c)(5), and in August 1983 we
denied leave.
A few days earlier, a panel of the Ninth Circuit had
held that section 636(c) was unconstitutional. Pacemaker
Diagnostic Clinic, Inc. v. Instromedix, Inc., 712 F.2d
1305 (9th Cir. 1983), rev’d in banc, Nos. 82-3152, 82-3182
(9th Cir. Feb. 16, 1984). As a result of this decision,
appellants moved in the district court, under Fed. R. Civ.
P. 60(b)(4), to vacate the magistrate’s final judgment on
the ground that it was “void” because the statute that
gave the magistrate jurisdiction was unconstitutional. In
November 1983, the district court denied the motion and
this expedited appeal followed. The United States has
intervened as a party, under 28 U.S.C. § 2403(a), to
defend the constitutionality of the challenged provision.
Before addressing the merits of the constitutional argu-
ment, we turn to appellants’ claim that the trial by the
magistrate was improper in a number of other respects. If
that were so, there would be no need to consider the
constitutionality of section 636(c). Therefore, under well-
recognized authority, we should consider the non-consti-
tutional issues first. See Ashwander v. TVA, 297 U.S.
288, 347 (1936) (Brandeis, J., concurring).
Appellants argue first that there was insufficient com-
pliance with the terms of 28 U.S.C. § 636(c)(2). That
section, see note 1, provides that after a district judge has
designated a full-time magistrate to conduct civil trials,
“the clerk of the court shall, at the time the action is filed,
notify the parties of their right to consent to the exercise
1831
-A5-
of such jurisdiction.” Appellants point out that since the
action here was commenced in 1975, years before enact-
ment of the section in its present form, the clerk of the
court did not send such notice when the action was filed
or at any subsequent time. Appellants also stress that the
notice to them actually came in 1981 from the magistrate,
who called the parties and informed them of his availabil-
ity and asked if they were willing to have the case tried by
him. This was followed up by a letter and a subsequent
phone call, after which both parties signed a form entitled
“Consent to Proceed Before a United States Magistrate.”
Appellants argue that the two phone calls and the letter
constituted inducement or pressure by the magistrate
sufficient to render their consent involuntary. The argu-
ment is not persuasive. It takes an uncalled-for leap of
imagination to characterize the magistrate’s actions as
coercion. Similarly without merit is the claim that the
notice was defective because it came from the magistrate
in 1981 rather than from the clerk in 1975, when the
section in question had not yet been enacted. Although
the new section applies to proceedings filed before its
effective date, cf. White v. Estelle, 556 F.2d 1366, 1368
(Sth Cir. 1977), it does not render a proceeding a nullity
merely for failure to comply with a technical requirement
that was not in existence at the time the section was
adopted. Moreover, neither claim now urged by appel-
lants was presented to the magistrate or on direct appeal
from his decision to the district court.
Il.
We turn now to the merits of the constitutional argu-
ment. Here, too, there is a preliminary issue that must be
considered. Appellee argues that appellants have waived
1832
-A6-
their constitutional claim because they never raised it
until after the magistrate had tried the case and ordered
the entry of judgment on the jury verdict; Chief Judge
Curtin had considered the appeal to the district court, in
which appellants raised numerous other issues, and had
affirmed the magistrate; and this court had denied leave
to appeal. Appellants claim that their motion is timely
under Fed. R. Civ. P. 60(b)(4), which, they argue, allows
collateral attack “within a reasonable time” on a civil
judgment on the ground that it is “void.” We accept
appellants’ contention:
Although the Rule is silent about collateral attack
as a method of challenging the validity of a judg-
ment, there can be little doubt that if the judgment is
void. . . a collateral attack upon the void judgment
may he made in any proceeding in any court where
the validity of the judgment comes in issue.
7 Moore’s Federal Practice 4 60.25[3], at 240 (2d ed.
1983); see Lubben v. Selective Serv. Sys. Local Bd. No.
27, 453 F.2d 645, 649 (Ist Cir. 1972); Graciette v. Star
Guidance, Inc., 66 F.R.D. 424, 426 (S.D.N.Y. 1975). In
their constitutional challenge, appellants assert that the
magistrate lacked subject matter jurisdiction in the under-
lying case and that the parties could not consent to give
him jurisdiction. Because this kind of jurisdictional claim
could arguably render the judgment void, appellants may
press their constitutional claim on collateral attack. See
Graciette, 66 F.R.D. at 426; 7 Moore’s Federal Practice
4 60.25[2], at 224.
1833
oY ty
IV.
Having disposed of these preliminary issues, we pro-
ceed to discuss the substance of appellants’ constitutional
claim. Appellants specifically attack 28 U.S.C.
§ 636(c)(1), which authorizes magistrates to conduct civil
trials and enter final judgments pursuant to the consent
of the parties and a reference by the district court. This
belated claim is admittedly based upon the decision of a
panel of the Ninth Circuit in Pacemaker Diagnostic
Clinic, Inc. v. Instromedix, Inc., supra.
Subsequent to the panel’s decision in Pacemaker, the
Third Circuit reached the opposite conclusion—that sec-
tion 636(c)(1) is constitutional—in Wharton-Thomas v.
United States, 721 F.2d 922 (3d Cir. 1983). More recently,
the Ninth Circuit, sitting in banc, reversed the Pacemaker
panel and held that the consensual referense provision is
constitutional. Pacemaker, supra, Nos. 82-3152, 82-3182
(9th Cir. Feb. 16, 1984) (in banc). All of these opinions
relied on the Supreme Court’s opinion in Northern Pipe-
line Construction Co. v. Marathon Pipe Line Co., 458
U.S. 50 (1982) (plurality opinion), where Justice Brennan,
writing for a plurality of four Justices, concluded that
section 241(a) of the Bankruptcy Act of 1978, 28 U.S.C.
1471, impermissibly removed “most, if not all, of ‘the
essential attributes of the judicial power’ from the Art.
III district court, and . . . vested those attributes in a
non-Art. III adjunct.” Id. at 87. Before analyzing the
constitutional arguments, we briefly review the back-
ground of the Federal Magistrate Act of 1979 and the
Northern Pipeline case.
A. The Magistrate Statutes
The Federal Magistrates Act of 1968, 28 U.S.C.
§§ 631-639 (amended 1976 & 1979), created magistrate
1834
-AS-
positions with an eight-year term of office and empow-
ered the district courts to appoint magistrates to serve
their districts. Id. § 631(a), (e). Magistrates were autho-
rized to perform the functions previously carried out by
United States commissioners, id. § 636(a)(1), to serve as
special masters in civil actions, to assist the district court
in the conduct of pretrial and discovery proceedings in
civil and criminal actions, to make preliminary review of
petitions for habeas corpus and to perform such addi-
tional duties as “are not inconsistent with the Constitu-
tion and laws of the United States,” id. § 636(b).
The 1968 Act provided for a magistrate’s removal
during his term of office for “incompetency, misconduct,
neglect of duty, or physical or mental disability.” Id.
§ 631(h) (now codified at § 631(i)). With minor excep-
tions not relevant here, only the judges of the district
court in which the magistrate served could exercise re-
moval authority. Id.
Congress amended the Magistrates Act in 1976, ex-
panding the duties and powers of magistrates. The 1976
amendments empowered magistrates to determine non-
dispositive pretrial motions subject to review by a district
judge under a clearly erroneous or contrary to law stan-
dard. The amendments also gave magistrates the author-
ity to make findings and recommendations on dispositive
pretrial motions and in prisoner cases. A district judge.
would then conduct a de novo review of those portions of
the magistrate’s report or proposed findings or recom-
mendations to which a party objected. 28 U.S.C.
§ 636(b)(1).
Under the Federal Magistrate Act of 1979, Congress
provided that upon the consent of the parties and when
specially designated to exercise such authority by the
district court in which he serves, a magistrate could also
1835
-A9-
Vv
conduct all proceedings in a jury or non-jury civil action
and enter final judgment. 28 U.S.C. § 636(c). This provi-
sion, which is reproduced in note 1, is under challenge in
this case. As already indicated, any discussion of whether
this section is constitutional should begin with an analysis
of Northern Pipeline.
B. Northern Pipeline
The Bankruptcy Act of 1978 established bankruptcy
courts “in each judicial district, as an adjunct to the
district court for such district.” 28 U.S.C. § 151(a). The
judges of these courts were to be appointed for 14-year
terms by the President with the advice and consent of the
Senate. Id. §§ 152, 153(a). They would be subject to
removal by the “judicial council of the circuit” on ac-
count of “incompetency, misconduct, neglect of dut~ or
physical or mental disability.” Id. § 153(b). Their salaries
were to be set by statute and subject to adjustment under
the Federal Salary Act, 2 U.S.C. §§ 351-361. 28 U.S.C.
§ 154.
These new courts were granted jurisdiction over all
“civil proceedings arising under title 11 [the Bankruptcy
title] or arising in or related to cases under title 11.” Id.
§ 1471(b),(c). Bankruptcy courts were vested with all of
the “powers of a court of equity, law, and admiralty,”
except that they could not “enjoin another court or
punish a criminal contempt not committed in the presence
of a judge of the court or warranting a punishment of
imprisonment.” Id. § 1481.’
3 The provisions of the Bankruptcy Act described above were not to
become effective until April 1, 1984. Congress, however, provided for
a transition period before the new provisions took full effect. The
Northern Pipeline plurality found that the transition rules gave bank-
ruptcy judges “essentially all of the jurisdiction and powers” that they
would acquire in 1984. Northern Pipeline, 458 U.S. at 56.
1836
-A10- j
The plurality in Northern Pipeline easily concluded that
“the bankruptcy judges whose offices were created by the
Bankruptcy Act of 1978 do not enjoy the protections
constitutionally afforded to Art. III judges.” 458 U.S. at
60. It then examined two arguments that the appellants in
that case presented in support of the constitutionality of
the Bankruptcy Act. First, the plurality discussed whether
the bankruptcy courts could be viewed as legislative
courts, established pursuant to Congress’ enumerated
Article | powers. Id. at 63. Second, it discussed whether
the bankruptcy courts could be viewed as proper adjuncts
to the district courts and whether the delegation of certain
adjudicative functions to bankruptcy judges “is accord-
ingly consistent with the principle that the judicial power
of the United States must be vested in Art. III courts.” Id.
at 76-77. Dealing with the first argument, the plurality
identified three situations in which Article III] does not
bar the creation of legislative (Article I) courts. Congress,
it stated, could create courts for the territories (and for
the District of Columbia), could establish and administer
courts martial and could create courts to adjudicate cases
involving “public rights.” The plurality then concluded
that bankruptcy courts could not be created pursuant to
Congress’ Article I powers under any of these three
exceptions. Id. at 63-76.
In this case, neither appellee nor the government argue
that the magistrate statutes created legislative courts.
Thus, we will focus on the second argument advanced in
Northern Pipeline in support of the Bankruptcy Act of
1978, that is, that the bankruptcy courts could be viewed
as proper adjuncts to the district courts. The Northern
Pipeline plurality dealt with this argument by analyzing
two cases in which the Court had held that the delegation
in question was constitutional: Crowell v. Benson, 285
1837
-All-
|
U.S. 22 (1932), and United States v. Raddatz, 447 U.S.
667 (1980). Crowell involved the use of administrative
agencies as factfinders for the adjudication of Congres-
sionally-created, “public” rights. The plurality found that
while Crowell certainly endorsed the proposition that
Congress possesses broad discretion to assign fact-
finding functions to an adjunct created to aid in the
adjudication of congressionally created statutory
rights, Crowell does not support the further proposi-
tion. . . that Congress possesses the same degree of
discretion in assigning traditionally judicial power to
adjuncts engaged in the adjudication of rights not
created by Congress.
458 U.S. at 81-82.
Because appellee in this case has alleged violations not
only of statutory, but also of constitutional rights, the
reference to the magistrate must meet standards more
stringent than those of Crowell if it is to survive constitu-
tional scrutiny. See id. at 82 & n.34, 83. Thus, the
discussion in Northern Pipeline of Raddatz, where the
Court upheld a district judge’s reference of a pretrial
motion to a magistrate, is more relevant to our analysis.
The Northern Pipeline plurality stated that the reference
challenged in Raddatz was upheld because the magistrate
“was subject to sufficient control by an Art. III district
court.” Id. at 79. In fact, the Raddatz Court had con-
cluded that “the ultimate decisionmaking authority. . .
clearly remained with the district court.” Id. The
Northern Pipeline plurality then proceeded to identify the
interest that would be adversely affected if the district
court did not retain sufficient control as “the principle of
separation of powers reflected in Art. III.” Id. at 83. The
plurality found that the “constitutional system of checks
1838
-Al2- j
and balances is designed to guard against encroachment
or aggrandizement’ by Congress at the expense of the
other branches of government.” Id. It then concluded
that since bankruptcy courts would sometimes adjudicate
“rights recognized by the Constitution,” id., the sources
of the control that Congress would have over those courts
could not be seen “merely as incidental extensions of
Congress’ power to define rights that it has created.” Id.
at 84. Instead, such extensions of legislative power “sug-
gest unwarranted encroachments upon the judicial power
of the United States, which our Constitution reserves for
Art. III courts.” Id.
With this background in mind, we proceed to discuss
the constitutionality of the consent provision of section
636(c).
C. Separation of Powers
We first find that unlike the provision of the Bank-
ruptcy Act challenged in Northern Pipeline, section 636(c)
does not violate the constitutional scheme of separation
of powers. We are cognizant, of course, that in discussing
this question, the Northern Pipeline plurality relied on
Raddatz and stressed that in that case, even though a
magistrate had conducted part of the proceeding, “the
ultimate decisionmaking authority. . . clearly remained
with the district court.” 458 U.S. at 79. Appellants argue
that because section 636(c) allows magistrates to enter
final judgments, the language just quoted from Northern
Pipeline indicates that the section is constitutionally in-
firm. To evaluate this argument, we have to focus on the
principles that were at stake in that case.
The Northern Pipeline plurality, as we have already
discussed in the previous section of this opinion, made
clear that its concern was over separation of powers. It
1839
-Al3-
acknowledged “the literal command of Art. III, assigning
the judicial power of the United States to courts insulated
from Legislative or Executive interference,” id. at 64, and
that while this command was not absolute, it was subject
to only limited exceptions, id. at 63-64. The plurality then
attempted to draw the line between “permissible exten-
sions of legislative power and impermissible incursions
into judicial power,” id. at 83 n.35, and concluded that
Congress had made “substantial inroads” into functions
that the Constitution reserved to Article III judges, id. at
84.
Given these principles, it follows that the reason the
Northern Pipeline plurality emphasized that “ultimate
decisionmaking authority” remained with the district
court was that such control would make it impossible for
other branches to “encroach” on judicial functions. But
while “ultimate decisionmaking authority” is a sufficient
condition for a finding that a challenged scheme does not
offend the policy of separation of powers, it is noi a
necessary condition for such a finding. What we must
decide is whether section 636(c) impermissibly allows
district judges to place magistrates under the control of
the executive or legislative branches. This conclusion
follows directly from the language used by the Northern
Pipeline plurality at the end of its discussion of Raddatz:
Thus, in Raddatz there was no serious threat that
the exercise of the judicial power would be subject to
incursion by other branches. ‘‘[T]he only conceivable
danger of a ‘threat’ to the ‘independence’ of the
magistrate comes from within, rather than without
the judicial department.”’
Northern Pipeline, 458 U.S. at 79 n.30 (quoting Raddatz,
447 U.S. at 685 (Blackmun, J., concurring)); see Whar-
1840
-Al4-
ton-Thomas, supra, 721 F.2d at 927 (magistrates ‘‘are not
subjected to pressures from the legislature’’).
The relevant question then is whether section 636(c)
changes the nature of the pressures on the independence
of magistrates. We find that it does not. The major
difference between Raddatz and this case is that when the
parties consent, the magistrate can now order the entry of
judgment. 28 U.S.C. § 636(c)(1). Unlike the situation in
Raddatz, there is no possibility of de novo review by the
district court. See Raddatz, 447 U.S. at 676-77. But the
other factors deemed important in Northern Pipeline, see
458 U.S. at 79, are present in adjudications under section
636(c). First, magistrates “must be specially designated to
exercise such jurisdiction by the district court.” 28 U.S.C.
§ 636(c)(1). Second, the method of appointment, id.
§ 621(a) and removal, id. § 631(i), of magistrates was not
affected by the 1979 Act; both responsibilities continue to
be entrusted to the district court. Finally, the district court
retains the power to withdraw the reference. Id.
§ 636(c)(6). Thus, to the extent that the section 636(c)
scheme differs from the arrangement in Raddatz, it does
so by authorizing district judges to delegate more author-
ity to magistrates. (In the following section, we consider
the constitutional implications of this additional delega-
tion.) Section 636(c), however, does not affect the alloca-
tion of power between Congress and the district courts.
The factors that seem to have concerned the Northern
Pipeline plurality—that bankruptcy judges were not ap-
pyinted by the district court and could not be removed by
the district court, that bankruptcy courts were vested with
independent jurisdiction and that district courts could not
withdraw cases from bankruptcy courts, see Northern
Pipeline, 458 U.S. at 79-80 n.31—are simply not present
1841
-Al5-
in adjudications under section 636(c), in the same way
that they were not present in Raddatz.
Appellants argue that threats to judicial independence
from within the judicial branch may be as dangerous as
threats from other branches. See Note, Article III Limits
on Article I Courts: The Constitutionality of the Bank-
ruptcy Court and the 1979 Magistrate Act, 80 Colum. L.
Rev. 560, 591 (1980). They suggest that the statement in
the Northern Pipeline plurality that “[t}he guarantee of
life tenure insulates the individual judge from improper
influence not only by other branches but by colleagues as
well,” 458 U.S. at 59 n.10, casts doubt on the constitu-
tionality of section 636(c). However, concerns about pres-
sures from within the judiciary do not involve the
question that was the focus of the Northern Pipeline
plurality’s inquiry, namely, separation of powers. See
Wharton-Thomas, supra, 721 F.2d at 927. Moreover, the
Northern Pipeline plurality itself explicitly refused to
assign any constitutional significance to such internal
pressures, 458 U.S. at 79 n.30; id. at 80 n.31, and
distinguished them from considerations that raise separa-
tion of powers problems, id. at 59 & n.10. To the extent
that non-constitutional, policy considerations are at
stake, we defer to the judgment of Congress.
D. Delegation of Judicial Power
Turning to the next constitutional issue raised by this
case, we find that references to magistrates under section
636(c) do not violate an Article III ban against the
delegation of judicial power to individuals who are not
Article III judges. The landmark challenge to the consti-
tutionality of delegation to magistrates is United States v.
Raddatz, supra. In that case, the district court referred a
suppression motion to a magistrate and ordered the
1842
-Al16-
eS a |
) magistrate to conduct an evidentiary hearing pursuant to
28 U.S.C. § 636(b)(1)(B). The defendant objected to this
reference. Litigant consent, however, is not a necessary
condition for section 636(b)(1)(B) references—as it is for
section 636(c) references—and the district court overruled
the objection. Section 636(b)(1)(B) references also differ
from § 636(c) references in another significant way: under
section 636(b)(1)(B), the magistrate does not decide the
motions referred to him, but instead submits “proposed
findings of fact and recommendations” to the district
court. The section further provides that a district judge
“shall make a de novo determination of those portions of
the report or specified proposed findings or recommenda-
tions to which objection is made.”
The defendant in Raddatz challenged the reference on
Statutory and constitutional grounds. The Court first
concluded that the statute did not call for a de novo
“hearing” and that a de novo “determination” was suffi-
cient. 447 U.S. at 676. Given this construction, it pro-
ceeded to analyze whether the statute violated the due
process clause of the Fifth Amendment, id. at 677-81, an
issue that we discuss in the next section of this opinion, or
Article III of the Constitution, id. ai 681-84. Discussing
the latter question, the Court noted that
the statute permits the district court to give to the
magistrate’s proposed findings of fact and recom-
mendations ‘‘such weight as [their] merit commands
and the sound discretion of the judge warrants.”’
Id. at 683 (quoting Mathews v. Weber, 423 U.S. 261, 275
(1976)). The Court concluded, however, that such “dele-
gation does not violate Art. III so long as the ultimate
decision is made by the district court.” 447 U.S. at 683.
1843
-Al/7-
Appellants focus on the limiting clause and suggest that it
requires us to find that section 636(c) is unconstitutional.
The Raddatz Court, however, did not address the
question that is before us in this case. The Court stated:
We need not decide whether, as suggested by the
Government, Congress could constitutionally have
delega ed the task of rendering a final decision on a
suppression motion to a non-Art. III officer. Con-
gress has not sought to make any such delegation.
Id. at 681 (citation omitted); see id. at 673 (labeling
suppression motion as case-‘‘dispositive’’). In fact, the
question that Raddatz reserved is more difficult than the
one we need to address in this case. The proposition that
the government advanced in Raddatz was that delegation
to magistrates would be constitutional even in the absence
of consent; all that appellee needs to show here is that the
delegation is constitutional when the parties consent to
the reference.
Like Raddatz, Mathews v. Weber, 423 U.S. 261 (1976),
fails to advance the argument that magistrates who re-
ceive section 636(c) references are not proper adjuncts to
the district court. In that case, the Court upheld a district
court’s practice of referring all Social Security benefit
cases to magistrates for review and preparation of a
recommended decision. In dictum, the Court stated that
“It]he authority—and the responsibility—to make an in-
formed, final determination . .. remains with the
judge.” Weber, 423 U.S. at 271, quoted in Raddatz, 447
U.S. at 682. The Court, however, explicitly noted that it
was deciding the case on statutory grounds, and that it
was not considering the constitutionality of the delegation
of judicial power. Weber, 423 U.S. at 269 & n.5. In fact,
the petitioner in that case, the Secretary of Health,
1844
Education, and Welfare, “expressly decline[{d] to rely on
any constitutional argument” in his challenge to the
reference. Id. at 269 n.5.
Similarly, the constitutionality of delegation was not at
issue in an earlier magistrates case, Wingo v. Wedding,
418 U.S. 461 (1974). There, the Court held that district
judges have a statutory duty under 28 U.S.C. § 2243 to
“personally hold evidentiary hearings in federal habeas
corpus cases,” id. at 472, and thus could not delegate this
function to magistrates. The holding in Wedding was later
overruled by the 1976 amendments to the Federal Magis-
trates Act. See 28 U.S.C. § 636(b)(1)(B).
In summary, in Raddatz, Weber and Wedding, the
Court did not consider the delegation question that is
before us in this case. In recent years, however, several
circuit courts have addressed the constitutionality of the
reference of cases to magistrates for trial. For example, in
DeCosta v. CBS, 520 F.2d 499 (ist Cir. 1975), cert.
denied, 423 U.S. 1073 (1976), the First Circuit held that
“it is constitutionally and statutorily permissible to refer
cases, with the consent of all parties, for initial decisions”
to magistrates. Id. at 507-08 (emphasis added). Cf. Sick
v. City of Buffalo, 574 F.2d 689, 690 n.6 (2d Cir. 1978)
(“[T]here is no ostensible reason for preventing consent
to a jury trial before a magistrate or master, assuming the
propriety of the appointment in the first instance.’’).
DeCosta also held that the findings of fact in the magis-
trate’s report should be reviewed under the “clearly erro-
neous” standard and that his legal conclusions should be
subject to full review. 520 F.2d at 508-09.
The consensual reference of a case for trial by a
magistrate was also upheld in Muhich v. Allen, 603 F.2d
1247 (7th Cir. 1979). In that case, the Seventh Circuit
Stated:
1845
Thus, when a civil case properly within the jurisdic-
tion of an article III court is tried before a magistrate
pursuant to an order of reference by the district
court, jurisdiction remains vested in the district court
and is merely exercised through the medium of the
magistrate. In this case, the district court retained its
jurisdiction over the litigation by exercising its super-
visory powers in the form of de novo review, and by
invoking its exclusive authority to order the entry of
final judgment. The strictures of article III were
therefore satisfied.
Id. at 1251 (citations omitted). In Muhich, the district
court had conducted a de novo review; thus, the Seventh
Circuit did not have to face the broader delegation
question that is before us in this case. Cf. Calderon v.
Waco Lighthouse for the Blind, 630 F.2d 352 (Sth Cir.
1980) (finding statutory requirement that in references
under 28 U.S.C. § 636(b)(3), the district court make a de
novo determination of the magistrate’s findings).
While Wharton-Thomas and the in banc decision in
Pacemaker, supra, are direct support for our conclusion
that section 636(c) is constitutional, the earlier cases just
mentioned are also important for our purposes. DeCosta,
in particular, came close to deciding the question that is
now before us. While the magistrate there could not enter
a final judgment, his report was subject to the same
standard of review as that accorded on appeal to a
magistrate’s judgment pursuant to setion 636(c). See 28
U.S.C. § 636(c)(4) (providing that appeal from magistrate
to district court shall be conducted like appeal from
district court to court of appeals); id. § 636 (c)(3) (provid-
ing that for purposes of direct appeal to court of appeals
judgment of magistrate shall be treated in the same
manner as judgment of district court). In addition, even
1846
under section 636(c) references, the contempt powers
remain with the district court. Id. § 636(e). Thus, the
differences between the report of the magistrate in
DeCosta and a section 636(c) judgment are, for the most
part, differences of form and not of substance.
It is also important to note that the references at issue
in DeCosta and Muhich took place before the adoption of
section 636(c), pursuant to the more general provision of
28 U.S.C. § 636(b)(3): “A magistrate may be assigned
such additional duties as are not inconsistent with the
Constitution and laws of the United States.” The argu-
ment for constitutionality is now stronger, since Congress
has specifically authorized the references in question after
giving serious consideration to the constitutional argu-
ments, S. Rep. No. 74, 96th Cong., Ist Sess. 4, reprinted
in 1979 U.S. Code Cong. & Ad. News 1469, 1473; H.R.
Rep. No. 287, 96th Cong., Ist Sess. 7-9 (1979). See, e.g.,
Northern Pipeline, 458 U.S. at 61; Fullilove v. Klutznick,
448 U.S. 448, 472-73 (1980).
Our inquiry, however, does not stop here. While we
agree with the holding in DeCosta, we do not find it
necessary to adopt the reasoning advanced by that opin-
ion, see 520 F.2d at 505, and by the government in this
case, that delegation to magistrates can be analogized to
delegation to arbitrators. Appellants argue that the anal-
ogy is not helpful because arbitrators are hired and paid ©
by the parties, and are wholly “outside” the district court.
To the extent that the district court does not “refer” cases
to arbitrators, who are instead chosen exclusively by
agreement of the parties, it would appear that arbitration
does not involve the same type of delegation of judicial
power as we have in this case. See Pacemaker, supra, 712
F.2d at 1311, rev’d in banc on other grounds, Nos.
82-3152, 82-3182 (9th Cir. Feb. 16, 1984). We find more
1847
-A21]-
instructive the analogy to special masters, who, like
magistrates, are properly seen as adjuncts to the district
court.
Under Fed. R. Civ. P. 53(b), the district judges may
refer pending civil cases to masters. Pursuant to such
references, a master may take evidence and conduct
hearings, Fed. R. Civ. P. 53(c), and must file with the
district court a report normally containing his findings of
fact and conclusions of law. Fed. R. Civ. P. 53(e)(1). In
nonjury cases, the district judge must accept the master’s
findings of fact unless they are “clearly erroneous.” Fed.
R. Civ. P. 53(e)(2). The master’s legal conclusions, how-
ever, are entitled to no special deference. See, e.g., Fogel
v. Chestnutt, 668 F.2d 100, 116-17 (2d Cir. 1981), cert.
denied, 103 S.Ct. 65 (1982); Oil, Chemical & Atomic
Workers Int’! Union v. NLRB, 547 F.2d 575, 580 (D.C.
Cir. 1976), cert. denied, 431 U.S. 966 (1977). In addition,
if the parties consent, the master’s findings of fact can be
final. Fed. R. Civ. P. 53(e)(4).
It is true that in La Buy v. Howes Leather Co., 352
U.S. 249, 259 (1957), the Supreme Court held that refer-
ences to masters should take place only under “excep-
tional circumstances.” But in La Buy, the Court merely
construed Fed. R. Civ. P. 53(b), which provides that “[a]
reference to a master shall be the exception and not the
rule.” The Court did.not suggest that more delegation
would be unconstitutional, but merely that it was not
authorized by Congress and would be undesirable on
policy grounds, id. at 253 n.5, 259; see Cruz v. Hauck,
515 F.2d 322, 330 (Sth Cir. 1975) (“The ineluctable con-
clusion is that the ‘exceptional condition’ limitation re-
sults from the deficiencies of the master system rather
than from constitutional limitations upon non-Article Ili
judges.”), cert. denied, 424 U.S. 917 (1976). In contrast,
1848
-A22-
not only does section 636(c) provide an adequate statu-
tory basis for delegation, but it also eliminates many of
the defects of the master system that influenced the
Supreme Court in La Buy: “the expense of the procedure
to the litigants, the likelihood of delays in the litigation,
the use of attorneys appointed on an ad hoc basis, a
master’s lack of experience in judicial work, and the
potential conflicts in the master’s time and interests.”
McCabe, The Federal Magistrate Act of 1979, 16 Harv. J.
Legis. 343, 373 (1979); see Silberman, Masters and Magis-
trates—Part II: The American Analogue, 50 N.Y.U. L.
Rev. 1297, 1328 (1975); Comment, An Adjudicative Role
for Federal Magistrates in Civil Cases, 40 U. Chi. L. Rev.
584, 588 (1973). In addition, Congress can be viewed as
having found implicitly that the overcrowding of district
court dockets gives rise to “exceptional circumstances”
justifying delegation to magistrates in the types of cases
covered by section 636(c). See Silberman, supra, 50
N.Y.U. L. Rev. at 1332 & n.197.
The analogy to masters is not perfect because masters
cannot order the entry of final judgment. As we have
stated in our discussion of DeCosta, however, the pre-
sumptions attached to a master’s report make the scope
of the delegation very similar to that authorized by
section 636(c). Cf. McCabe, supra, 16 Harv. J. Legis. at
371 (“In essence, then, a trial judge who has appointed a
special master in a nonjury civil case has transformed his
role into that of an appellate court, at least with regard to
the resolution of factual issues”). In fact, Fed. R. Civ. P.
53(e)(4), which allows the parties to agree to make the
master’s factual findings final, involves more delegation
of judicial power than that at issue under section 636(c).
Finally, we stress that we do not need to rely wholly on
the analogy between a magistrate’s judgment under 28
1849
-A23-
i
U.S.C. § 636 and a master’s report under Fed. R. Civ. P.
53(b) because all section 636 references are consensual.
The issue of consent is significant to our discussion for
several reasons.
First, while appellants correctly argue that parties may
not confer jurisdiction on a court by consent, consent
can, in certain cases, be a necessary condition for the
exercise Of jurisdiction. For example, under the Bank-
ruptcy Act of 1898, bankruptcy referees could not try
actions that did not involve property in the actual or ;
constructive possession of the bankruptcy court, except
by consent. 11 U.S.C. § 46(b)(repealed 1978); see Mac-
Donald v. Plymouth County Trust Co., 286 U.S. 263, 266
(1932). In fact, all four opinions filed in Northern Pipe-
line noted the importance of consent in this context. See
458 U.S. at 80 n.31 (plurality opinion) (“Before the [1979]
Act the referee had no jurisdiction” under 11 U.S.C.
§ 46(b) “except with consent.”); id. at 91 (Rehnquist, J.,
concurring) (“I would, therefore, hold so much of the
Bankruptcy Act of 1978 as enables a Bankruptcy Court to
entertain and decide Northern’s lawsuit over Marathon’s
objection to be violative of Art. III of the United States
Constitution”); id. at 92 (Burger, C.J., dissenting) (stat-
ing that absence of consent was central to Court’s hold-
ing); id. at 95 (White, J., dissenting) (arguing that Court’s
holding should be limited to cases not involving consent)
(emphasis added).
Second, consent can affect the limits of permissible
delegation. This proposition was expressed most clearly
by the Supreme Court in Kimberly v. Arms, 129 U.S. 512
(1889). In that case, the Court stated:
a
It is not within the general province of a master to
pass upon all the issues in an equity case, nor is it
competent for the court to refer the entire issue to
1850
-~A24- i
him without the consent of the parties... . But
when the parties consent to the reference of a case to
a master or other officer to hear and decide all the
issues therein, and report his findings, both of fact
and of law, and such reference is entered as a rule of
the court, the master is clothed with very different
powers from those which he exercises upon ordinary
references, without such consent.
Id. at 524. It then stated that the master’s findings in a
consensual reference would be “taken as presumptively
correct” and subject to review “when there has been
manifest error in the consideration given to the evidence,
or in the application of the law, but not otherwise.” Id.
The same concept is embodied in Fed. R. Civ. P. 53(e),
which provides for a different standard of review of a
master’s report when the reference is consensual.
Third, the consent provision of section 636(c) provides
a constraint against the wholesale delegation of judicial
power to adjuncts of the district court. Thus, it helps
ensure that the delegation will not reach a magnitude that
would trigger Article III concerns. See Note, Article III
Constraints and the Expanding Civil Jurisdiction of Fed-
eral Magistrates: A Dissenting View, 88 Yale L.J. 1023,
1038 (1979) (Article III requires at least “some delegation
constraints”).
E. Due Process
In Raddatz, the Court considered whether the reference
of a suppression motion, over defendant’s objection, to a
magistrate violated a due process right to have a case
heard before an Article III judge. The Court stated that
the guarantees of due process call for a “hearing appro-
priate to the nature of the case.” 447 U.S. at 677. It
1851
ai D> on
concluded that the reference did not violate the defen-
dant’s due process rights. Id. at 680. Raddatz did not
address the question whether the reference of a civil case
for trial and entry of final judgment would violate the
due process rights of the parities. In this case, we need not
deal with that question either, because all references under
28 U.S.C. § 636(c) are by consent of the parties. We find
that to the extent that litigants may have a due process
right to appear before an Article III judge in a civil case,
they may freely waive that right. Indeed, the Supreme
Court has held that important constitutional rights may
be waived even in criminal cases, which generally raise
more troubling due process problems. See, e.g., Patton v.
United States, 281 U.S. 276, 312 (1930) (waiver of right to
jury trial); Adams v. United States, 317 U.S. 269, 275
(1942) (waiver or right to counsel); see also Fed. R. Civ.
P. 38(d) (right to jury trial in civil cases automatically
waived unless affirmatively exercised). As we have al-
ready stated, we do not think that appellants were coerced
into consenting to the reference, and we find that the
procedures used to protect the voluntariness of the con-
sent were adequate.
The judgment of the district court is affirmed.
1852
-A26-
ee ne ee ee ‘a
iii ia rae
FCZiVE
nunc oF MONROE
cae ae * iw
wf i
A 7 nag 159
NJ =
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HOWARD V. COLLINS,
Plaintiff
atte CIV -75-139¢
WILLIAM FOREMAN, VINCENT PILLETTERS,
and TERRY WARDEN,
Defendant(s)
SIR/MADAM: Take notice of an ORDER, SX3USEMERNX
of which the within is a copy, duly granted in the within
entitled action on the 8th day of _ November, 1983
and entered in the Office of the Clerk of the United States
District Court, Western District of New York on the 8th
day of November, 1983
Dated: Buffal. New York
November 8, 1983
JOHN K. ADAMS, CLERK
U.S. Districr Court
Western District of New York
U.S. Courthouse
Buffalo, New York 14202
TO: Alfred P. Kremer, Esq.
James A. Valenti, Esq.
Nira T. Kermisch, Esq.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HOWARD V. COLLINS,
Plaintiff,
-vs- CIV-75-139C
WILLIAM FOREMAN, VINCENT PILLETTERS,
and TERRY WARDEN,
Defendants.
Defendants ask this court to set aside the
judgment entered December 14, 1981, Fed.R.Civ.P. 60(b) (4).
Defendants further seek a stay of the enforcement of that
judgment. Fed.R.Civ.P. 62(b).
The parties consented to a jury trial of this
Civil rights action before a United States Magistrate, 28
U.S.C. §636(c). The jury found liability on the part of
some of the defendants, which included the payment of both
compensatory and punitive damages.
In an appeal pursuant to 28 U.S.C. §636(c) (4),
this court affirmed the judgment by decision and order dated
April 22, 1983. Although defendants filed for appeal to the
United States Court of Appeals for the Second Circuit, they
neglected to include any attack on the constitutionality of
the Magistrate's power to conduct jury trials. An order
denying leave to appeal was made on August 12, 1983, but
neither plaintiff nor defendant-appellants were notified
until October ll. 1983.
-A28-
Between the time of actual denial of appeal in
August and notification in October, the defendant-appellants
attempted to amend their petition to include an allegation
that 28 U.S.C. §636 is unconstitutional, citing the August
5, 1983, Ninth Circuit decision in Pacemaker Diagnostic
Clinic of America, Inc. v. Instromedix, Inc., ?.2a
___, 52 U.S.L.W. 2105 (9th Cir. 1983). Of course,
post-decision amendment was then impossible.
Since the Second Circuit has not yet addressed the
constitutionality of trials by consent before a Magistrate,
defendants' motion to vacate the judgment is denied.
Defendants shall have a continued stay of the enforcement of
the judgment for a period of 15 days from the date of this
order. This stay should give the defendants ample time to
apply to the Second Circuit for a stay, pending further
action by that court.
So ordered.
)
F a, "
aA \ Nene
/ NO JOHN T. CURTIN
/ -Unfited States District Judge
Dated: November § , 1983
-A29-
28 U.S.C. § 631 ET SEQ.
CHAPTER 43 - UNITED STATES MAGISTRATES
§ 631. Appointment and tenure
(a) The judges of each United States district court and the dis-
trict court of the Virgin Islands shall appoint United States mag-
istrates in such numbers and to serve at such locations within the
judicial district as the conference may determine under this chap-
ter. In the case of a magistrate appointed by the district court of
the Virgin Islands, this chapter shall apply as though the court
appointing such magistrate were a United States district court.
Where there is more than one judge of a district court, the ap-
pointment, whether an original appointment or a reappoint-
ment, 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. Where the conference deems it desirable,
a magistrate may be designated to serve in one or more districts
adjoining the district for which he is appointed. Such a designa-
tion shall be made by the concurrence of a majority of the judges
of each of the district courts involved and shall specify the duties
to be performed by the magistrate in the adjoining district or dis-
tricts.
(c) A magistrate may hold no other civil or military office or
employment under the United States: Provided, however, That,
with the approval of the conference, a part-time referee in bank-
ruptcy or a clerk or deputy clerk of a court of the United States
may be appointed and serve as a part-time United States magis-
trate, but the conference shall fix the aggregate amount of com-
pensation to be received for performing the duties of part-time
magistrate and part-time referee in bankruptcy, clerk or deputy
clerk: And provided further, That retired officers and retired en-
listed personnel of the Regular and Reserve components of the
Army, Navy, Air Force, Marine Corps, and Coast Guard, mem-
bers of the Reserve components of the Army, Navy, Air Force,
Marine Corps, and Coast Guard, and members of the Army Na-
A-30
tional Guard of the United States, the Air National Guard of the
United States, and the Naval Militia and of the National Guard
of a State, territory, or the District of Columbia, except the Na-
tional Guard disbursing officers who are ona full-time salary ba-
sis, may be appointed and serve as United States magistrates.
(d) No individual may serve under this chapter after having at-
tained the age of seventy years: Provided, however, That upon
the unanimous vote of all the judges of the appointing court or
courts, a magistrate who has attained the age of seventy years
may continue to serve and may be reappointed under this chapter.
(e) The appointment of any individual as a full-time magis-
trate shall be for a term of eight years, and the appointment of
any individuals as a part-time magistrate shall be for a term of
four years, except that the term of a full-time or part-time magis-
trate appointed under subsection (j) shall expire upon —
(1) the expiration of the absent magistrate’s term,
(2) the reinstatement of the absent magistrate in regular
service in office as a magistrate,
(3) the failure of the abse.u magistrate to make timely appli-
cation under subsection (i) of this section for reinstatement in
regular service in office as a magistrate after discharge or release
from military service,
(4) the death or resignation of the absent magistrate, or
(5) the removal from office of the absent magistrate pursu-
ant to subsection (h) of this section,
whichever may occur first
(f) Upon the expiration of his term, a magistrate may, by a ma-
jority vote of the judges of the appointing district court or courts
and with the approval of the judicial council of the circuit, con-
tinue to perform the duties of his office until his successor is ap-
pointed, or for 60 days after the date of the expiration of the mag-
istrate’s term, whichever is earlier.
A-31
(g) Each individual appointed as a magistrate under this sec-
tion shall take the oath or affirmation prescribed by section 453
of this title before performing the duties of his office.
(h) Each appointment made by a judge or judges of a district
court shall be entered of record in such court, and notice of such
appointment shall be given at once by the clerk of that court to
the Director.
(i) Removal of a magistrate during the term for which he is ap-
pointed shall be only for incompetency, misconduct, neglect of
duty, or physical or mental disability, but a magistrate’s office
shall be terminated if the conference determines that the services
performed by his office are no longer needed. Removal shall be
by the judges of the district court for the judicial district in which
the magistrate serves; where there is more than one judge of a
district court, removal shall not occur unless a majority of all the
judges of such court concur in the order of removal; and when
there is a tie vote of the judges of the district court on the question
of the removal or retention in office of a magistrate, then re-
moval shall be only by a concurrence of a majority of all the
judges of the council. In the case of a magistrate appointed under
the third sentence of subsection (a) of this section, removal shall
not occur unless a majority of all the judges of the appointing
district courts concur in the order of removal; and where there is
a tie vote on the question of the removal or retention in office of a
magistrate, then removal shall be only by a concurrence of a ma-
jority of all the judges of the council or councils. Before any or-
der or removal shall be entered, a full specification of the charges
shall be furnished to the magistrate, and he shall be accorded by
the judge or judges of the removing court, courts, council, or
councils an opportunity to be heard on the charges.
§ 633. Determination of number, locations, and salaries of
magistrates
(a) Surveys by the Director. —
A-32
(1) The Director shall, within one year immediately follow-
ing the date of the enactment of the Federal Magistrates Act,
make a careful survey of conditions in judicial districts to deter-
mine (A) the number of appointments of full-time magistrates
and part-time magistrates required to be made under this chapter
to provide for the expeditious and effective administration of
justice, (B) the locations at which such officers shall serve, and
(C) their respective salaries under section 634 of this title. There-
after, the Director shall, from time to time, make such surveys,
general or local, as the conference shall deem expedient.
(2) In the course of any survey, the Director shall take into
account local conditions in each judicial district, including the
areas and the populations to be served, the transportation and
communications facilities available, the amount and distribution
of business of the type expected to arise before officers appointed
under this chapter (including such matters as may be assigned un-
der section 636(b) of this chapter), and and other material fac-
tors. The Director shall give consideration to suggestions from
any interested parties, including district judges, United States
commissioners or officers appointed under this chapter, United
States attorneys, bar associations, and other parties having rele-
vant experience or information.
(3) The surveys shall be made with a view toward creating
and maintaining a system of full-time United States magistrates.
However, should the Director find, as a result of any such sur-
veys, areas in which the employment of a full time magistrate
would not be feasible or desirable, he shall recommend the ap-
pointment of part-time United States magistrates in such num-
bers and at such locations as may be required to permit prompt
and efficient issuance of process and to permit individuals
charged with criminal offenses against the United States to be
brought before a judicial officer of the United States promptly
after arrest.
(b) Determination by the conference. — Upon the comple-
tion of the initial surveys required by subsection (a) of this sec-
tion, the Director shall report to the district courts, the councils,
and the conference his recommendations concerning the number
of full-time magistrates and part-time magistrates, their respec-
tive locations, and the amount of their respective salaries under
section 643 1 of this title. The district courts shall advise their re-
spective councils, stating their recommendations and the reasons
therefor; the councils shall advise the conference, stating their
recommendations and the reasons therefor, and shall also report
to the conference the recommendations of the district courts.
The conference shall determine, in the light of the recommenda-
tions of the Director, the district courts, and the councils, the
number of full-time United States magistrates and part-time
United States magistrates, the locations at which they shall serve,
and their respective salaries. Such determinations shall take ef-
fect in each judicial district at such time as the district court for
such judicial district shall determine, but in no event later than
one year after they are promulgated.
(c) Changes in number, locations, and salares. — Except as
otherwise provided in this chapter, the conference may, from
time to time, in the light of the recommendations of the Director,
the district courts, and the councils, change the number, loca-
tions, and salaries of full-time and part-time magistrates, as the
expeditious administration of justice may require.
§8634. Compenstion.
(a) Officers appointed under this chapter shall receive as full
compensation for their services salaries to be fixed by the confer-
ence pursuant to section 633 of this title, at rates for full-time and
part-time United States magistrates not to exceed the rates now
or hereafter provided for full-time and part-time referees in
bankruptcy, respectively, referred to in section 40a of the Bank-
ruptcy Act (i1 U.S.C. 68(a)), as amended, except that the salary
of a part-time United States magistrate shall not be less than $100
nor more than one-half the maximum salary payable to a full-
A-34
iii ia
a ee
te Rene tae
time magistrate. In fixing the amount of salary to be paid to any
officer appointed under this chapter, consideration shall be given
to the average number and the nature of matters that have arisen
during the immediately preceding period of five years, and that
may be expected thereafter to arise, over which such officer
would have jurisdiction and to such other factors as may be mate-
rial. Disbursement of s2!2ries shall be made by or pursuant to the
order of the Directo.
(b) Except as provided by section 8344, title 5, relating to re-
ductions of the salaries of reemployed annuitants under sub-
chapter III of chapter 83 of such title and unless the office has
been terminated as provided in this chapter, the salary of a full-
time Unided States magistrate shall not be reduced, during the
term in which he is serving, below the salary fixed for him at the
beginning of that term.
(c) All United States magistrates, effective upon their taking
the oath or affirmation of office, and all necessary legal, clerical,
and secretarial assistants employed in the offices of full-time
United States magistrates shall be deemed to be officers and em-
ployees in the judicial branch of the United States government
within the meaning of subsection III (relating to civil service re-
tirement) of chapter 83, chapter 87 (relating to Federal employ-
ees’ group life insurance), and chapter 89 (relating to Federal em-
ployees’ health benefits program) of title 5. Part-time
magistrates shall not be excluded from coverage under these
chapters solely for lack of a prearranged regular tour of duty.
§ 636. Jurisdiction, powers, and temporary assignment
(a) Each United States magistrate serving under this chapter
shall have within the territorial jurisdiction prescribed by his ap-
pointment —
(1) all powers and duties conferred or imposed upon United
States commissicners by law or by the Rules of Criminal Proce-
dure for the United States District Courts;
A-35
(2) the power to administer oaths and affirmations, impose
conditions of release under section 3146 of title 18, and take ac-
knowledgments, 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)(1) Notwithstanding any provision of law to the contrary —
(A) a judge may designate a magistrate to hear and deter-
mine any pretrial matter pending before the court, except a mo-
tion for injunctive relief, for judgment on the pleadings, for
summary judgment, to dismiss or quash an indictment or infor-
mation made by the defendant, to suppress evidence in a criminal
case, to dismiss or to permit maintenance of a class action, to dis-
miss for failure to state a claim upon which relief can be granted,
and to involuntarily dismiss an action. 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 er-
roneous or contrary to law.
(B) a judge may also designate a magistrate to conduct hear-
ings, including evidentiary hearings, and to submit to a judge of
the court proposed findings of fact and recommendations for the
dispostion, by a judge of the court, of any motion excepted in
subparagraph (A), of applications for posttrial relief made by in-
dividuals convicted of criminal offenses and of prisoner petitions
challenging conditions of confinement.
(C) the magistrate shall file his proposed findings and re-
comendations under subparagraph (B) with the court and a copy
shall forthwith be mailed to all parties. Within ten days after be-
ing served with a copy, and party may serve and file written objec-
tions to such-proposed findings and recommendations as pro-
vided by rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified pro-
posed findings or recommendations to which objection is made.
A judge of the court may accept, reject, or modify, in whole or in
A-36
part, the findings or recommendations made by the magistrate.
The judge may also receive further evidence or recommit the mat-
ter 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 re-
gard 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 assinged 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.
(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 estahlished by the judicial council of the circuit.
When there is more than one judge of a district court, designa-
tion under this paragraph shall be by the concurrence of a major-
ity of all the judges of such district court, and when there is no
such concurrence, then by the chief judge.
A-37
(2) If a magistrate is designated to exercise civil jurisdiction
under paragraph (1) of this subsection, the clerk of the 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. There-
after, 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 vol-
untariness of the parties’ consent.
(3) Upon entry of judgment in any case referred under para-
graph (1) of this subsection, an aggrieved party may appeal di-
rectly to the appropriate United States court of appeals from the
judgment of the magistrate in the same manner as an appeal from
and 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 re-
view 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 dis-
trict 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 stat-
ing specific objections to the judgment. Nothing in this para-
A-38
pte ee nen
graph 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 by the court to take a ver-
batim record by shorthand or by mechanical means, or by an em-
ployee of the court designated by the court to take such a verba-
tum record. Notwithstanding the magistrate’s determination,
(A) the proceeding shall be taken down by a court reporter if any
party so requests, (B) the proceedings 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 report-
ing duties in such court.
(d) The practice and procedure for the trial of cases before of-
ficers serving under this chapter, and for the taking and hearing
of appeals to the district courts, shall conform to rules promul-
gated by the Supreme Court pursuant to section 3402 of title 18,
United States Code.
(e) In a proceeding before a magistrate, any of the following
acts or conduct shall constitute a comtempt of the district court
for the district wherein the magistrate is sitting: (1) disobedience
or resistance to any lawful order, process, or writ; (2) misbehav-
ior at a hearing or other proceeding, or so near the place thereof
as to obstruct thie same, (3) failure to produce, after having been
ordered to do so, any pertinent document; (4) refusal to appear
after having been subpenaed or, upon appearing refusal to take
A-39
the oath or affirmation as a witness, or, having taken the oath or
affirmation, refusal 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 rea-
son 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 punish-
ment, 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.
(f) 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 magis-
trate shall perform an 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 rea-
son of which he has been transferred, (2) the duration of his as-
signment, and (3) the duties which he is authorized to perform. A
magisirate so assigned shall not be entitled to additional compen-
sation but shall be reimbursed for actual and necessary expenses
incurred in the performance of his duties in accordance with sec-
tion 635.
A-40
SO ae Ie i ee
(g) 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 ti-
tle 18, United States Code, and may perform such functions be-
yond the territorial limits of the United States. A magistrate as-
signed such functions shall have no authority to perform any
other function within the territory of a foreign country.
A-41
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.