Opposition Brief — Beazer East, Inc. v. Mead Corp.

7

lies far afield from the situation confronted by the Third

Circuit.

Moreover, as the dates of these cases (along with several

others advanced by Petitioner) indicate, they were handed

down before the two most recent pronouncements by this

Court on the subject of § 636(b\(3). See Gomez v. United

States, 490 U.S. 858 (1989); Peretz v. United States, 501 U.S.

923 (1991). To the extent that this authority fails to heed this

Court's admonition that consent is the touchstone for

designation under § 636(b)(3), it is of questionable value. But

the stale decisions also reflect something else — Petitioner's

inability to cite a single case to support a conflict less than a

decade old indicates that there is no current confusion

amongst the circuits on the applicability of § 636(b)(3).

Against this backdrop, Petitioner insists that the Third

Circuit’s decision stands in direct conflict with the Tenth

Circuit. See Clark v. Poulton, 963 F.2d 1361 (10th Cir.), cert.

denied, 506 U.S. 1014 (1992) (Pet. at 7-8). The fact that

Petitioner's best evidence of a split is what the dissent and

certiorari petition said in that case, rather than what the

ma’‘ority held, confirms that no conflict exists. (Pet. at 8).

In Clark, the Tenth Circuit considered whether it was

proper to refer an evidentiary hearing in a prisoner civil rights

matter to a magistrate. In concluding that it was, the court

rested its decision on two important findings. First, the

plaintiff “made no objection to the referral to the magistrate

judge. Therefore, . . .. the issue was waived by Clark’s failure

to object below.” /d ai 1366. Needless to say, this contrasts

fundamentally with the situation before the Third Circuit.

Second, Mr. Clark’s lawsuit challenged two incidents of

excessive force — one while he was being booked and another

during confinement. Section 636(b)(1(B) specifically allows

referrals to magistrates for “evidentiary hearings” for

“prisoner petitions challenging conditions of confinement.”

The latter incident fell squarely within this provision.

Concerning the former, the court turned to the additional

8

duties clause rather than resolving the “confinement” issue

and held: “Because Clark’s section 1983 action challenging

his treatment while being booked and while in pretrial

detention is ‘comparable in importance’ to a prisoner petition

challenging conditions of confinement . . . we believe the

referral to the magistrate judge under section 636(b)\(3) was

proper.” /d. at 1366.

The hearing on CERCLA equitable allocation bears no

resemblance to any authorized statutory referral. As the Third

Circuit recognized, that is a critical component of a CERCLA

trial. See 42 U.S.C. § 9613(f(1). Other circuits readily

appreciate CERCLA equitable allocation presents a task for

the district court: “Allocation of liability under CERCLA. . .

is an equitable determination, in which the district court must

make its own factual findings and legal conclusions.” Gopher

Oil Co. v. Union Oil Co., 955 F.2d 519, 526 (8th Cir. 1992).

And the Sixth Circuit has emphasized, in the context of

finding a probation revocation hearing not delegable under §

636(b\(3), that hearings that require “fact-finding and

credibility assessment” are beyord the pale of “additional

duties.” Banks v. United States, 614 F.2d 95, 98 (6th Cir.

1980). The court explained: “The tssues adjudicated at the

hearing are not procedural or administrative and do not tum

on pure matters of law. With two exceptions, Congress has

been careful to retain fact-finding functions in district

judges.” Jd; see also United States v. Gomez-Lepe, 207 F.3d

623 (9h Cir. 2000) (when party has not consented, “where

discretion is exercised, the scope of magistrate judge's

authority is construed more narrowly” under § 636(b)(3)).

The district court did not delegate a “Daubert hearing” to the

magistrate, it referred “one of the ultimate issues to be tried.”

which happened to be “the only issue in the case unique to

contribution claims.” (Pet. App. 20a). The sheer magnitude

of the proceeding — 12 days, 14 witnesses, and 1300 exhibits

— confirms that it does not compare to any of the authorized

nonconsensual references in § 636.

9

Not surprisingly, therefore, the Third Circuit had no

occasion to consider Clark in the course of its decision. Of

course, that might also be attributable to Petitioner’s failure to

cite this case in either its brief before the Third Circuit or its

petition for rehearing en banc. In a case so ably and

vigorously argued, the fact that Clark was not mentioned

speaks volumes.

Petitioner also offers a fleeting argument that a split has

emerged regarding the significance of de novo review. (Pet.

at 10). Yet the cases it cites recognize that they turn on the

question of whether the parties consented to the magistrate.

See, e.g., Hill v. Duriron Co., 656 F.2d 1208 (6th Cir. 1981);

Ford v. Estelle, 740 F.2d 374, 380 (Sth Cir. 1984) (vacating

reference of trial to magistrate in the absence of consent) (Pet.

at 10). In Hill, the Sixth Circuit did not rule, as Petitioner

invited the Third Circuit to do, that de novo review excused

an improper delegation. Rather, the court found that consent

cured the otherwise inappropriate reference: “here has been

a complete trial before the magistrate. .. . We conclude that

these steps were taken with consent of the parties... .” Hill,

656 F.2d at 1214.° In light of the consent, which obviated the

need for any further scrutiny on the underlying reference, the

only remaining question was the appropriate standard of

review. Petitioner’s reliance on cases where the parties

consented validates, rather than undermines, the Third

Circuit’s result.

In this case, the Third Circuit correctly realized that the

magistrate assumed adjudicatory functions traditionally

reserved to the prerogative of Article III judges — and, indeed,

conducted a trial over Mead’s objection. None of

’ Petitioner also suggests that by describing the magistrate’s actions

as “resolving” certain matters, the Third Circuit created yet another circuit

split. (Pet. at 10). Even assuming such characterizations would be

capable of yielding a splix, the Third Circuit did not rest its decision on

that point. It simply held that the magistrate had no authority and thus the

diftrict court had nothing to review

10

Petitioner's array of authority addresses anything similar, and

certainly none of it presents a conflict.

Il. No Conflict Exists with Prior Supreme Court

Decisions

Petitioner’s claim of a conflict with authority from this

Court is disingenuous in light of its admission that “this Court

has not ruled on the application of § 636(b)\(3) in civil cases”

and its assertion that the relevant Supreme Court cases are

“fundamentally different” from the matter at bar. (Pet. at 11,

23). Nevertheless, Petitioner proceeds to argue that the Third

Circuit ran afoul of Gomez v. United States, 490 U.S. 858

(1989) and Peretz v. United States, 501 U.S. 923 (1991).

In Gomez, this Court, construing the additional duties

clause, held that a district court could not refer voir dire in a

criminal trial to a magistrate in the absence of consent. It

began the decision by parsing the language of the statute.

“Read literally and without reference to the context in which

they appear,” § 636(b)(3) “might encompass any assignment

that is not explicitly prohibited by statute or the Constitution.”

Gomez, 490 U.S. at 863. Yet the Court could not endorse

such an analysis, preferring to “deduce| |" the meaning “from

the context of the overall statutory scheme.” /d. at 864. It

explained: “When a statute creates an office to which it

assigns specific duties, those duties outline the attributes of

the office. Any additional duties performed pursuant to a

* Petitioner also references United States v. Raddatz, 447 U.S. 667

(1980). However, that case involved a designation under § 636(b)1)

rather than § 636(b)(3), and it concerned a suppression hearing, which is

specifically covered by § 636(b)(1). Nor does Matthews v. Weber, 423

U.S. 261 (1976) assist Petitioner. That case, interpreting a prior version of

the Federal Magistrates Act, considered magistrate review of the “closed

administrative record” in Social Security cases. /d at 270. The Court

emphasized that “neither party may put any additional evidence” in such a

proceeding and that the magistrate “may do no more than propose a

recommendation.” /d. at 270-7)

general authorization in the statute reasonably should bear

some relation to the specified duties.” /d

Relying on that contextual approach, this Court found that

the range of duties available for referral was limited and

advisory in nature. Gomez, 490 U.S. at 864. The legislative

history confirmed that “magistrates should handle subs‘diary

matters to enable district judges to concentrate on trying

cases.” /d at 872. In surveying the history of the

magistrate’s role, the Court readily recognized that “ja|

critical limitation on [a magistrate’s] expanded jurisdiction is

consent.” Gomez, 490 U.S. at 870.

Peretz confirmed that limitation. It considered a question

left open by Gomez — whether voir dire in a felony trial could

be delegated to a magistrate when both sides consented.

While this Court permitted that practice, it took pains to

emphasize the consent limitation on its decision.

As this Court explained, “the defendant's consent

significantly changes the constitutional analysis” and such

“consent also eliminates our concern that a_ general

authorization should not lightly be read to deprive a defendant

of any important privilege.” Peretz, 501 U.S. at 932. In other

words, consent broadens the acceptable range of “additional

duties”: “Of course, we would still be reluctant, as we were in

Gomez, to construe the additional duties clause to include

responsibilities of far greater importance than the specified

duties assigned to magistrates. But the litigant’s consent

makes the crucial difference on this score as well.” /d at 933.

Far from being “blinded” by Peretz and Gomez, (Pet. at

22), the Third Circuit appropriately summarized these cases

as follows: “The parties’ consent or lack thereof is a key

factor in deciding whether a referral is authorized under the

‘additional duties’ clauses.” (Pet. App. 30a). And it

appreciated the point made in Peretz: “the scope of the clause

varie|s| significantly according to whether the parties’

consented to the reference.” (/d.). In the absence of consent,

the court applied the contextual analysis mandated in Gomez.

12

—

Equitable allocation in a CERCLA action is “central to” and

“the very core” of the trial. (Pet. App. 31a). It thus did not

fall within the “subsidiary” or “administrative” matters

permitted by the additional duties clause. See Gomez, 490

U.S. at 864, 872; see also United States v. Bryson, 981 F.2d

720, 725 (4th Cir. 1992) (“The duties that a magistrate may

perform over the parties’ objection are generally subsidiary

matters. . . . However, with the parties’ consent, a district

judge may delegate to a magistrate supervision of entire civil

and misdemeanor trials.”); Gomez-Lepe, 207 F.3d at 628-29

(evaluating whether matter delegated to magistrate was

“subsidiary” or a “critical stage” of the proceeding).

111. This Case Presents a Poor Vehicle for Certiorari

Perhaps appreciating the absence of a circuit split or any

conflict with this Court’s precedent, Petitioner devotes the

bulk of attention to its argument that the question presented

poses an important question of federal law that warrants this

Court's immediate attention. Yet even cursory scrutiny of the

reasons advanced by Petitioner reveals this argument to be

without merit.

1. First, this case does not present any constitutional

questions. That may seem curious to a reader of the Petition.

given the substantial emphasis that it places on arguing that

there was not an Article III or due process violation, (Pet. at

22-26), and that this Court needs to explicate the

constitutional limitations on the additional duties clause. (Pet.

at 19-21). However, the Third Circuit decided this matter on

statutory grounds and found that reference under the

“additional duties” clause was not authorized by Congress.

(Pet. App. 29-31la). The Third Circuit began its analysis by

noting that “[t}he jurisdiction of magistrate judges is limited

by statute” and framed its conclusion as follows: “We

conclude that the referral was not proper under any provision

of the Magistrates Act.” (Pet. App. 17a). It is the first task of

any court confronted with statutory and constitutional issues

to resolve the matter on the former grounds if possible. That

13

is exactly what the Third Circuit did, and as a result, it never

reached any of the constitutional questions averted to by

Petitioner. See also NLRB vy. A-Plus Roofing, Inc., 39 F.3d

1410, 1415 (9th Cir. 1994) (“|F]lederal magistrates are

creatures of statute, and so is their jurisdiction. ... We need

not and must not reach the constitutional question if we can

first determine that the magistrate had no statutorily-created

jurisdiction to handle the referral! we gave it.”),; Harris v. Folk

Construction Co., 138 F.3d 365, 370 (8th Cir. 1998) (“Where

no consent is given under § 636(c), a magistrate judge is

confined to his or her limited authority under the remaining

provisions of the Act.”). Therefore, this case does not afford

this Court an opportunity to clarify any “confusion over

magistrates’ constitutional” authority. (Pet. at 14).°

Petitioner’s effort to distract the Court and instill this case

with greater importance by raising constitutional arguments

accordingly should be disregarded.

2. Aside from the constitutional detour, Petitioner insists

that review is warranted because of the “chilling” effect that

the Third Circuit decision will yield amidst the “confusion” in

the lower courts. (Pet. at 13-18). As explained above, the

~ confusion claim is manufactured. The “chilling” protestation

fares no better.

To be sure, Petitioner cites a series of statistics to

demonstrate that the workload of the federal judiciary (district

courts and magistrates alike) has increased in recent years.

(Pet. at 13-14). Respondent does not quibble with that narrow

point. But given that premise, if there really were true

confusion about the role magistrates should play, one would

expect to see a number of recent cases on the subject.

The paucity of authority reveals that lower courts

understand and have correctly construed the additional duties

‘4 ‘ - ‘ ‘ ‘ ‘ cm ‘ »

Nor can this Court provide district courts “with a specific list of

tasks that fall within the ‘additional duties’” clause — that lies solely within

Congress’ prerogative. (Pet. at 14).

14

provision under § 636. Petitioner, however, isolates a snippet

from the legislative history that this Court has previously

referenced about district courts “experiment[ing|” with

magistrate judges and asserts that all such experimentation

will now surely grind to a halt. (Pet. at 15-18). Nothing of

the sort will occur. It is important to set that reference in

context. Congress did not mean to unleash district courts

from the confines of the statute by including the “additional

duties” clause. See United States v. Colacurcio, 84 F.3d 326,

333 (%h Cir. 1996) (“The ‘additional duty’ provision cannot

be interpreted in such a way as to swallow up the whole

statute.”); Olympia Hotels Corp. v. Johnson Wax Dev. Corp.,

908 F.2d 1363, 1369 (7th Cir. 1990) (“Nor would there be

much point to the elaborate provisions in section 636(c) for

the conduct of civil trials (including jury trials) by a

magistrate with the consent of both parties if a district judge

could compel the parties, against their wishes, to submit to a

magistrate’s conducting vital stages in the trial, such as the

voir dire of the jury.”). To the contrary, the legislative history

explains, in the paragraph preceding the “experiment”

reference:

This subsection would permit, for example, a

magistrate to review default judgments, order the

exoneration or forfeiture of bonds in criminal cases,

and accept returns of jury verdicts where the trial

judge is unavailable. This subsection would also

enable the court to delegate some of the more

administrative functions to a magistrate, such as the

appointment of attorneys in criminal cases and

assistance in the preparation of plans to achieve

prompt disposition of cases in the court.

H.R. Rep. No. 94-1609 at 12 (1976), reprinted in 1976

U.S.C.C_A.N, 6162, 6172. Reviewing default judgments and

conducting “administrative” duties bear no resemblance to

appropriating key portions of a trial on damages. See Banks

v. United States, 614 F.2d 95, 97 (6th Cir. 1980) (“[{T]he

legislative history suggests that this [additional duties]

15

provision was meant to apply only to procedural and

administrative matters.”). In a similar veivi, Peretz spoke

approvingly of the “experiment” so long as it was “acceptable

to all participants in the trial process and [| consistent with the

basic purposes of the statute.” Peretz, 501 U.S. at 933.

Yet in Petitioner's eyes, the “additional duties” clause

knows no bounds but the Constitution. Not surprisingly.

however, it presents no cases that have shunned the

contextual statutory approach mandated by this Court.

3. This case also presents a poor vehicle for review

based on its underlying context. The Third Circuit devoted

substantial attention to the narrow issue of the role of

equitable allocation in CERCLA contribution actions.

Petitioner’s criticism of the court's conclusions in this regard

reveals the fact-dependent nature of this case. Although

CERCLA litigation abounds, the lack of disputes over

magistrate references in this context confirms that this case

will not have a wide-reaching impact. A detailed analysis by

this Court of the role of equitable allocation proceedings in

CERCLA actions will thus offer no meaningful guidance to

the lower courts.

4. In addition to the reasons chronicled above, review in

this case would be of limited utility since the Third Circuit

has already held that the case must be remanded regardless of

the propriety of the magistrate reference. In light of the

length of this litigation, after reversing based on the

magistrate question, the Third Circuit provided further

guidance to the litigants, explaining that the district court

committed a fundamental error in its cost allocation decision

because it applied the wrong legal standard. (Pet. App. 34a).

Needless to say, the factual “findings” reviewed and applied

by the district court were influenced by the improper legal

conclusion. Thus, even if Petitioner succeeded in obtaining

review and a reversal from this Court, its victory would

largely be a pyrrhic one. The matter would still have to be

returned to the district court and the record reopened.

16

Proceeding in such a fashion would be a tremendous waste of

this Court's resources.

5. The points about the reversal of the district court’s

decision reveal the futility in Petitioner's harmless error

argument. (Pet. at 28-29). First, Petitioner advances no

authority to contradict the Third Circuit’s conclusion that

“[s]ince the Magistrate Judge lacked the power to conduct the

equitable allocation proceeding in this case, there was nothing

for the District Court to review.” (Pet. App. 32a). And

indeed, the only extant authority supports this proposition.

United States v. Ruiz-Rodriguez, 277 F.3d 1281, 1293 n.17

(11th Cir. 2002) (“Harmless error analysis does not apply

when a magistrate judge lacks the power to act.”); Thomas v.

Whitworth, 136 F.3d 756, 761 (11th Cir. 1998) (“[I}t can

never be genuinely ‘harmless’ for a litigant, over his

objection, to be compelled to try some or all [of] his case

before a non-Article III judicial officer not entitled to exercise

the power of an Article III judge.”); Olympia Hotels Corp. v.

Johnson Wax Dev. Corp., 908 F.2d 1363, 1369 (7th Cir.

1990) (“[I]ssues of entitlement to a particular kind of tribunal

are in general not subject to the harmless error rule. . . .”);

United States v. Colacurcio, 84 F.3d 326, 333 (9th Cir. 1996)

(recognizing that lack of magistrate authority could not be

cured by district court review and remanding for new

proceeding before district court).

The Seventh Circuit refused to find harmless error even

though the party objecting to the magistrate’s delegation

“made no effort to show how it was harmed.” Olympia, 908

F.2d at 1369. In most cases, the “demonstration of harm” by

an improper delegation will be “impossible” for the party to

establish. /d. at 1370. In this case, by contrast, the Third

Circuit has already substantiated the harm claim. The district

court adopted the magistrate’s findings and conclusions

virtually whole-scale, and the Third Circuit explained that

these findings were tainted by proceeding under an improper

analytical method. Therefore, regardless of the magistrate’s

17

diligence, its actions cannot be described as “harmless” to

Mead.

As explained above, the Third Circuit's decision sits

comfortably alongside authority from its sister circuits and

demonstrates fidelity to this Court's precedent. The district

court delegated an indispensable part of a CERCLA trial to

the magistrate judge, obligating the magistrate to embark on a

12 day hearing, replete with approximately 1300 exhibits and

the testimony of 14 witnesses. Such an undertaking

demanded fact-finding and credibility assessment, rather than

the “procedural,” “administrative,” or “subsidiary” tasks that

have been found properly delegated under the additional

duties clause when consent was wanting.

CONCLUSION

For all of the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

PIFRRE H. BERGERON VAN CARSON

SQUIRE, SANDERS & Counsel of Record

DEMPSEY LLP WILLIAM V. SHAKLEE

312 Walnut Street SQUIRE, SANDERS &

Susie $500 DEMPSEY LLP

Cincmnati, Ohio 45202 4900 Key Tower

(513) 361-1200 27 Public Square

Cleveland, Ohio 44114

(216) 479-8500

(216) 479-8500

Fax: (216) 479-8780

November 23, 2005

3 FILED

| DEC 5-205

No. 05-524 SUPREY PREME COURT. US.

Bn the

Supreme Court of the Anited States

Beazer East, INnc.,

Petitioner,

Vv.

THe MEAD CORPORATION,

Respondei.t.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

PETITIONER'S REPLY BRIEF

D. Matruew Jameson Ill

(Counsel of Record)

Mark D. SHerarp

K. Marx Hatt

Me issa L. Evans

Of the firm:

Basst, CALLAND, CLEMENTS

AND ZOomNIR, P.C

Two Gateway Center, 8TH Fioor

Prrrspurocu, PA 15222

(412) 394-5400

Decemser 5, 2005

Counsel for Petitioner Beazer East, Inc.

. a

_ ecker Gallagher Legal Publishing, Inc. 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTRODUCTION

REASONS FOR GRANTING THE PETITION

I. The Decision of the Third Circum Directly

Conflicts With the Tenth Circuit .

Il. The Third Circuit's Decision Conflicts With This

Court's Reasoning as Stated in Its Magistrates Act

Decisions

Ill. This Case Is the Idea! Vehicle for This Court to

Review the Scope of a Magistrate's Authority to

Conduct Nonjury Hearings in Civil Cases

CONCLUSION ....

10

TABLE OF AUTHORITIES

CASES

Bank of Nova Scotia v. United States,

Ge a SEED co vewddeteaccraveseces 9

Banks v. United States, 614 F.2d 95 (6th Cir. 1980)... 2

Campbell v. United States Dist. Court for the N. Dist. of Cal.,

501 F.2d 196 (9th Cir. 1974),

cert. denied., 419 U.S. 879 (1974)... ....... ae

Clark v. Poulton, 963 F.2d 1361 (10th Cir.),

cert. denied, 506 U.S. 1014 (1992) ..... eee ae

Gomez v. United States, 490 U.S. 858 (1989) ... 3, 4, 10

Gopher Oil Co. v. Union Oil Co..,

955 F.2d 519 (8th Cir. 1992) .... 2.2... 006. 1,2

Hibbs v. Winn,

542 U.S. 88 (2004) .......... rere ree 6

In re Establishment Inspection of Gilbert & Bennett Mfg.

Co.,

589 F.2d 1335 (7th Cir. 1979)... ....... foe? ae

Mathews v. Weber, 423 U.S. 261 (1976) ... 3,4,5,7,8

Olympia Hotels Corp. v. Johnson Wax Dev. Corp..,

908 F.2d 1363 (7th Cir. 1990) 7 errs

Peguero v. United States, 526 U.S. 23 (1999) ..... 9

Peretz v. United States, 501 U.S. 923 (1991) ...... 3,4

Thomas v. Whitworth,

136 F.3d 756 (1 lth Cir. 1998)... ........05.. 9

United States v. Gochis,

it PPG, AED céscesecdéveee'’s 9

United States v. Ruiz-Rodriguez,

277 F.3d 1281 (11th Cir. 2002) ..........4-4.. 9

United States v. Wey, 895 F.2d 429 (7th Cir.),

cert. denied, 497 U.S. 1029 (1990) ........... 9

STATUTES

, Pie te [ « | . es passim

OTHER

Gt, Ee OD «sc vec.evseceaeces eee l

H.R. Rep. No. 94-1609 (1976),

reprinted in 1976 U.S.C.C.A.N. 6162 ........... 6,7

— —

INTRODUCTION

Mead claims that there are three reasons why this Court

should deny certiorari: (1) there is no circuit split; (2) the

Third Circuit's Opinion does not conflict with Supreme Court

precedent; and (3) this case is not a proper vehicle for

certiorari. For the reasons set forth below, Mead’s arguments

are not persuasive.

REASONS FOR GRANTING THE PETITION

I. The Decision of the Third Circuit Directly Conflicts

With the Tenth Circuit.

Despite Mead’s claim that Beazer has “manufactured” a

circuit split, a review of Mead’s response fails to explain how

the Tenth Circuit’s decision in Clark v. Poulton, 963 F.2d

1361 (10th Cir.), cert. denied, 419 U.S. 1014 (1992), can be

reconciled with the Third Circuit's decision in this case.' The

key point in Clark is clear: “the majority’s reading of section

636(b)(3) would permit a district court to refer to a magistrate

the entire civil trial of any plaintiff, without consent, so long

as the district court retained de novo review as specified by

section 636(b)(1)(C).” /d. at 1369 (Seymour, J., dissenting);

see also id. at 1365-66 (majority opinion, articulating reasons

for broad interpretation of subsection (b)(3)). This result

clearly conflicts with the Third Circuit.

Furthermore, the cases Mead relies upon do not stand for

a universal proposition that CERCLA equitable allocation

hearings must be conducted by an Article III judge. Gopher

Oil Co. v. Union Oil Co. , 955 F.2d 519, 526 (8th Cir. 1992),

' Beazer’s decision not to rely on Clark before the Third Circuit does not

“speak[] volumes” about whether there is a circuit split. Opp. at 9.

Instead, Beazer simply acknowledged that the Third Circuit is not bound

by a Tenth Circuit decision. See, e.g., 3rd Cir. LAR 28.3(b) (2002). In

contrast, this Court is concerned with precisely the type of conflict created

by this circuit split.

2

merely noted that in CERCLA allocations the findings are

made by the court, not the jury. Banks v. United States, 614

F.2d 95, 98 (6th Cir. 1980), held that credibility

determinations must be made by the district judge. In the

instant case, the District Court's referral order reserved the

right to rehear evidence. App. 237a. However, the District

Court determined, as part of its twenty-page de novo review,

that this was not necessary:

The review and assessment of the testimony in this

manner and the expressed merit-based reasons for

adopting certain portions of the witnesses’ testimony

and opinions also renders moot Mead's objection that

the allocation hearing/report and recommendation

transcends the boundaries of the Magistrates Act. It

similarly reveals the lack of merit in Mead’s insistence

that a trial de novo with live witness presentations be

conducted before this court on the same issues

presented to the Magistrate Judge in order for the

court to judge for itself the credibility of witnesses.

The report assigns relative weight on such factors as

the methodology employed, the thoroughness of the

expert's analysis, the number of potential relevant

factors considered, the internal consistency of the

testimony and assessments made, and so forth. It does

not discred( any testimony on the basis of the

demeanor or character of the witness.

App. 124a 0.5. Therefore, unlike Gopher Oil, a case

involving allegations of fraud, which clearly calls for

credibility determinations, and Banks, a probation revocation

hearing focused on “credibility assessment,” this case

involved the comparison of expert witnesses presenting two

very different analytical approaches to equitable allocation,

and limited factual determinations based almost exclusively on

a paper record.

3

Il. The Third Circuit’s Decision Conflicts With This

Court’s Reasoning as Stated in Its Magistrates Act

Decisions.

Beazr’s Petition did not, as Mead claims, assert that the

Third Circuit’s decision conflicts with holdings from this

Court. To the contrary, Beazer consistently acknowledged

that this Court has never addressed the precise issue presented

by this case, Pet. at 21, which is one of the many reasons why

this Court should grant this Petition. Instead, Beazer's

Petition describes the ways in which the Third Circuit's

decision conflicts with fundamental principles that this Court

has applied in its Magistrates Act analysis. Pet. at 21-29.

Mead’s discussion of Peretz v. United States, SO\ US.

923 (1991), and Gomez v. United States, 490 U.S. 858

(1989), ignores the fact that, unlike the present case,

constitutional concerns regarding “he right to a trial by jury

were readily apparent. Even more significantly, Mead fails

to discuss adequately the rationale in Mathews v. Weber, 423

U.S. 261 (1976) (identifying due process advantages of

referral to magistrate), this Court's leading case regarding

civil assignments to magistrates. Instead, Mead attempts to

dismiss the applicability of the Mathews rationale in a

footnote, by making meaningless distinctions that this case

involved (1) “a prior version of the Fe eral Magistrates Act”

and (2) a “closed administrative record.” Opp. at 10 n.4.

First, the differences between the version of the Magistrates

Act at issue in Mathews and the current version of the Act

favor the referral. Pet. at 14-18 (discuss. %g the history of the

Act). Second, the fact that the record was closed in Mathews

is of no import. For purposes of analyzing the Magistrates

Act, the key point is whether the magistrate relied upon

credibility determinations that could not be meaningfully

reviewed by the district court during its de novo review. As

noted above, the Magistrate in the instant case did not rely on

4

any credibility determinations in making his proposed

findings. Therefore, the status of the record is a distinction

without a difference, and this Court's analysis in Mathews

cannot be reconciled with the Third Circuit's approach. Pet.

at 26-28.

Finally Mead’s quote from Mathews, noting that the

magistrate in that case “may do no more than propose a

recommendation,” is an important concession - this is

precisely the limitation imposed on the Magistrate in the

instant case. This is the type of limitation that this Court

found persuasive in Mathews, and is one reason why the

Third Circuit erred in overturning the assignment in this case.

III. This Case is the Ideal Vehicle for This Court to Review

the Scope of a Magistrate’s Authority to Conduct

Nonjury Hearings in Civil Cases.

1. Mead contends that the Third Circuit “never reached”

any Constitutional questions regarding subsection (b)(3), and

instead issued a ruling solely on “statutory grounds.” Opp.

at 12-13. Given that the text of this section provides: “A

magistrate judge may be assigned such additional duties as are

not inconsistent with the Constitution and laws of the United

States,” 28 U.S.C. § 636(b)(3) (2005), any attempt to limit an

analysis of this section to “statutory interpretation” ignores

the fact that Congress has made the Constitution an express

part of that analysis.

While the Third Circuit seized on this Court's analysis of

the Magistrates Act in criminal cases such as Peretz and

Gomez, the Constitutional issue in these cases is so readily

apparent (the right to criminal trial by jury) that an in-depth

Constitutional analysis was not necessary. Where

Constitutional concerns are present, this Court has suggested

that the duties assignable to magistrates should resemble those

duties that are specifically enumerated in other sections of the

Magistrates Act. This Court's discussion in Mathews,

5

however, indicates that where no such Constitutional concerns

are present, there is no need for the assigned duties to closely

resemble the enumerated duties, as long as the district court

conducts a de novo review. As in Mathews, with civil

nonjury hearings, such as the hearing in this case, it is the

absence of Constitutional concerns that provides wide latitude

for district Courts to assign these hearings to magistrates.

2. Mead claims that the Third Circuit decision will not

have a “chilling effect” on the Congressional intent to permit

district courts to “experiment” with the use of magistrates

pursuant to subsection (b)(3), because, according to Mead,

Beazer’s Petition overstates the level of experimentation that

Congress intended. Opp. at 13-14. Placed in context,

however, the legislative history supports Beazer's position.

Specifically, the House Report proposing the addition of

subsection (b)(3) reads as follows:

Proposed subsection 636(b)(3) provides for the

assignment to a magistrate of any other duty not

inconsistent with the Constitution and laws of the

United States. A similar provision is contained in the

existing legislation. This subsection enables the

district courts to continue innovative experimentations

in the use of this judicial officer. At the same time,

placing this authorization in an entirely separate

subsection emphasizes that it is not restricted in

any way by any other specific grant of authority to

magistrates.

Under this subsection district courts would remain free

to experiment in the assignment of other duties to

magistrates which may not necessarily be included

in the broad category of “pretrial matters.” This

subsection would permit, for example, a magistrate to

review default judgments, order the exoneration or

forfeiture of bonds in criminal cases, and accept

6

returns of jury verdicts where the trial judge is

unavailable. This subsection would also enable the

court to delegate some of the more administrative

functions to a magistrate such as the appointment of

attorneys in criminal cases and assistance in the

preparation of plans to achieve prompt disposition of

cases in the court.

H.R. Rep. No. 94-1609 at 12 (1976), reprinted in 1976

U.S.C.C.A.N. 6162, 6172 (emphasis added).’ It is readily

apparent from the foregoing paragraph that, by isolating the

“additional duties” clause from the prescribed duties

contained in subsections (b)(1) and (b)(2), Congress intended

to prevent those enumerated duties from becoming an

unreasonable restraint on district courts’ experimentation.’

Furthermore, Mead's quote from Olympia Hotels Corp.

v. Johnson Wax Dey. Corp., 908 F.2d 1363, 1369 (7th Cir.

1990), Opp. at 14, indicates a decision to ignore completely

? Furthermore, the Third Circuit erred by concluding that subsection (b)(3)

is only appropriately used to assign “preliminary” matters to a magistrate.

App. 3la. Section 636(b)\(1) explicitly permits a district court to assign

“any pretrial matter” (with limited exceptions) to a magistrate. Therefore.

limiting the interpretation of subsection (b)(3) to “preliminary” matters

renders the section superfluous, in clear violation of the “rule against

superfluities.” See Hibbs v. Winn, 542 U.S. 88, 101 (2004).

* The Seventh Circuit addressed this distinction in /n re Establishment

Inspection of Gilbert & Bennett Mfg. Co., 589 F.2d 1335, 1340-41 (7th

Cir. 1979) (holding that magistrates are authorized to issue OSHA search

warrants, reasoning that the “additional duties” in subsection (6)(3) “are

not to be restricted to only specific statutory grants of authority or lumied

to functions delineated in section 636(b), fer example, duties only related

to ‘any pretrial matter" The only limitations on section 636(b)(3) are that

the duties be consistent with the Constitution and federal laws and that they

not be specifically excluded by section 636(>)(1).”).

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a key point in Beazer’s Petition - namely, that the continued

oversight and participation of the district court is the key

distinction between non-consensual referrals under § 636(b)

(requiring de novo review by an Article Ill judge) and

consensual referrals under § 636(c) (providing no further

recourse to an Article II] judge). Pet. at 19-21. In addition,

this Court has previously recognized the broader scope of

delegation to magistrates that is permitted when the district

court retains de novo review. Mathews v. Weber, 423 U.S.

at 270-72.*

3. Mead contends that this case is not worthy of review

by this Court because the issues are limited to CERCLA

cases. To the contrary, the scope of section 636(b)(3)

assignments is an issue present in all nonjury civil cases.”

4. Mead is wrong to suggest that the case must be

remanded in any event. The fundamental flaw in the Third

* In its 1976 amendments to the Magistrates Act, Congress fully

considered this critical distinction surrounding the scope of the district

court's review. “The amendment states expressly ... that the district judge

in making the ultimate determination of the matter, would have to give

fresh consideration to those issues to which specific objections have been

made by a party.” H.R. Rep. No. 94-1609 at 3, reprinted in 1976

U.S.C.C_A.N. at 6163. In developing the procedure for the district court

on review, Congress adopted the approach outlined in Campbell v. United

States Dist. Court for the N. Dist. of Cal., S01 F.2d 196 (9th Cir. 1974),

cert. denied, 419 U.S. 879 (1974). Under the procedure adopted in

Campbell, as codified by the 1976 amendments to the Act, while the

district court “may call for and receive additional evidence ... it is not

required to hear any witness and not required to hold a de novo hearing of

the case.” /d. at 207-08; accord H.R. Rep. No. 94-1609 at 3-4

> Beacer’s discussion of the statistics regarding the use of magistrates

highlights for this Court the wide application that this issue has on

jurisprudence throughovt the country

Circuit's opinion is that it fails to recognize the District

Court's total control and direction of the Magistrate’s work

and the importance of the District Court's de novo

review. This fundamental error infects the Third Circuit's

analysis of both the initial referral and the District Court's

actual allocation. Thus, both parts of the Third Circuit's

opinion should be stricken.

The Court of Appeals states that the District Court

“somewhat ambiguously adopted” rationales set forth by the

Magistrate, App. 35a, without analyzing what the District

Court actually said. App. 11la-130a.° Thus, the Third

Circuit attributes findings and conclusions made by the

Magistrate to the District Court, without giving proper

consideration to the actual de novo review performed by the

District Court. See Mathews, 423 U.S. at 274 (“We

categorically reject the suggestion that judges will accept,

uncritically , recommendations of magistrates.”).

5. The Third Circuit characterized the referral to the

Magistrate as “jurisdictional” and concluded that such an

* In particular, the Third Circuit concluded that the District Court felt

compelled to restrain its equitable discretion due to the “polluter pays”

policy. App. 40a-4la. To the contrary, the District Court clearly

explained that it was giving full equitable consideration to the “purchase

agreement factors” and did not feel constrained by the “polluter pays”

policy. See App. 122a (“As modified the above allocation strikes an

appropriate equitabie balance between the factors surrounding the 1974

sale of the site to Beazer, Beazer and KII's ownership and ongoing

operation of the site since 1974, the factors pertaining to each party's

contributions to the current condition of the site, and the remaining

equitable factors, identified in the report.”); App. 116a (“Although the

‘polluter pays’ policy is an important guide post in analyzing CERCLA

matters, § 9613(f) assigns to the court the obligation of determining in any

particulars ease the appropriate equitable factors to be considered in the

allocation process.” ).