 The role of the United States Magistrate Judge with Judge D. Brock Hornby, United States District Court for the District of Maine. Judge Hornby formally served as a U.S. Magistrate Judge for the District of Maine from 1982 to 1988. He is currently a member of the Judicial Conference Committee on Court Administration and Case Management. For the most part, United States District Judges have little control over what appears on their docket within their constitutional and statutory duties. District judges must conduct every proceeding and decide every issue as it comes their way with limited assistance from law clerks and occasionally a staff attorney. Congress, however, has created, recently I might add in the scheme of judicial time, a separate category of judicial officers to whom Article III District Judges can actually divert some of their workload and who can be a tremendous help in managing a busy docket. I speak, of course, of United States Magistrate Judges. The primary sources of Magistrate Judge authority are 28 United States Code Section 636, Federal Rules of Civil Procedure 72 through 76, Federal Rules of Criminal Procedure 3 through 5.1, 32.1, 40 to 41, and 58, and the separate rules for Section 2254 and 2255 cases. It is convenient for discussion purposes to consider the authority of Magistrate Judges in two categories, Civil and Criminal. Section 636C of Title 28 allows a Magistrate Judge to exercise the full range of authority of a District Judge in a civil case if the parties file a written consent. The appendix to the Federal Rules of Civil Procedure contains a sample consent form. If the parties consent, the Magistrate Judge can resolve every issue in the case, preside at the trial, whether jury or bench, and enter the judgment of the District Court. The only peculiarity is that the parties may also elect to appeal the Magistrate Judge's decision to the District Court, which then operates like a court of appeals. Or they can take the ordinary appeal to the Court of Appeals. Except for a few districts, the usual route of appeal is directly to the Court of Appeals. Rule 73 to 75 of the Federal Rules of Civil Procedure lay out in detail the procedures for any appeal from a decision of a Magistrate Judge who has entered judgment in a case. If the parties do not consent, there is still a wide range of things a Magistrate Judge can do in civil cases that will relieve a burdened Article III Judge. On motions to dismiss or for judgment on the pleadings, motions for summary judgment, motions to certify or dismiss a class, and motions for injunctive relief, a Magistrate Judge can make a report and recommended decision to the District Judge. If the parties are notified of their right to object and fail to file an objection, they will not waive any objections, both in the District Court and on appeal. If one or the other party does file an objection, the District Judge must make a de novo decision, but the Judge then has the benefit of the focus provided by the Magistrate Judge's recommendation. On all other pretrial matters, for example, discovery motions and case management issues, the Magistrate Judge is authorized to resolve the issues. Any appeal to the District Judge can yield a reversal only if the Magistrate Judge's decision is clearly erroneous or contrary to law. This very relaxed standard of review obviously makes the District Judge's reviewing role easy in most cases. If the defendant consents, Magistrate Judges may conduct all the proceedings in a misdemeanor case, including presiding over a jury or bench trial, then enter judgment and sentence the defendant with the full authority of the District Court. In both felony and misdemeanor cases, even without a consent, Magistrate Judges can conduct initial appearances under Rule 5 of the Federal Rules of Criminal Procedure, preliminary examinations are probable cause hearings under Rule 5.1, detention or bail hearings under Sections 3141 through 3144 of Title 18 United States Code, and arraignments where the plea is not guilty. Only the pretrial release or detention order is subject to review by the District Judge. Magistrate Judges are also authorized under Section 636 of Title 28 to conduct suppression hearings and to consider motions to dismiss or quash an indictment. For these, they make a report and recommended decision that the District Judge must review de novo, but the District Judge then has the advantage in the suppression context of being able to review a transcript rather than sit through the entire proceeding. On other criminal pretrial matters such as discovery, motions for bill of particulars, etc., Magistrate Judges can also make the decisions. The review by the District Judge is then only for matters that are clearly erroneous or contrary to law. A Magistrate Judge is not able to take a guilty plea or to impose sentence in a felony case although some districts have experimented with a recommended decision on a guilty plea. Finally, there are a variety of post-trial matters that Magistrate Judges can perform in criminal cases. They can, of course, conduct their own probation revocation or supervision of release revocation hearings in misdemeanor cases where they have imposed the sentence. In other cases, they can issue warrants and conduct probable cause hearings on a revocation for a District Judge and, indeed, can conduct the revocation hearing and make a recommended decision. In habeas corpus proceedings under section 2254 or 2255, Magistrate Judges can also review the record, consider the briefs, conduct evidentiary hearings and make a report and recommended decision that the District Judge will then review de novo. In short, Magistrate Judges have an exceedingly wide range of authority which, if exercised, can greatly assist an Article 3 Judge. I have not even discussed other routine incidental matters such as criminal complaints, arrest and search warrants, removal of a defendant from one district to another, appointment of a lawyer for an indigent defendant, receiving indictments when the grand jury rises and the like. Let's talk now about how Magistrate Judges are actually used in practice. Perhaps the greatest strength of the Magistrate Judge system is its flexibility. In other words, the duties of Magistrate Judges may be formulated differently from district to district in order to serve the best the needs of each particular district. However, the workload of the district is allocated, District Judges should make clear that Magistrate Judges have been appointed to exercise judicial authority and they should not be delegated non-judicial duties. I will try to describe the most common ways in which Magistrate Judges function around the country, ranging from the most universal to the most unusual. Magistrate Judges are used countrywide to preside at files or to take pleas in petty offense cases that arise on federal property. In areas with significant national park property or large military bases, this can be a significant part of the docket. In more serious criminal cases, Magistrate Judges are used everywhere to review criminal complaints, applications for arrest and search warrants, to conduct initial appearances under Rule 5, preliminary examinations under Rule 5.1 if there is no indictment, and removal hearings under Rule 40 and to conduct detention hearings. These are matters that frequently come up with little or no notice and the availability of Magistrate Judges means that a District Judge does not have to interrupt an ongoing trial or sentencing proceeding. In districts with more than one Magistrate Judge a rotation system is sometimes established so that one Magistrate Judge exercises these preliminary criminal duties for a set period of time. In many districts Magistrate Judges are used in civil cases to resolve discovery disputes and other pretrial matters such as attachment and garnishment. They also frequently conduct settlement conferences and perform or supervise alternative dispute resolution services in their districts. An important number conducts the initial Rule 15 conference and issue the scheduling orders thereby fulfilling an important docket management function. Many also conduct final pretrial conferences. In some district Magistrate Judges have developed an extensive expertise in social security disability law and are assigned the entire social security docket in the Federal Trial Court. Often the parties consent to their resolving these cases completely if not the Magistrate Judge issues a report and recommended decision that is customarily adopted by the District Court. If there are no prosaic clerks to handle prisoner cases Magistrate Judges may develop an expertise in prisoner litigation. They then handle all the requests to proceed in form of operas and conduct the initial review for whether a matter is frivolous or malicious such that it can be dismissed under 28 United States Code section 1915. They are also authorized to conduct evidentiary hearings on conditions of confinement. In some districts Magistrate Judges go to the prison facility to conduct hearings. Magistrate Judges are often asked also to review state habeas corpus case records under 28 United States Code section 2254 and to bring the case to a recommended decision. They are less frequently asked to conduct the section 2255 or Federal habeas corpus proceeding because the District Judge who has presided at the trial or guilty plea and has imposed the sentence has first hand knowledge of many of the issues raised in the section 2255 motion. In a substantial number of districts Magistrate Judges conduct hearings on contested dispositive motions such as motions to suppress in a criminal case or to dismiss an indictment or motions to dismiss or for summary judgment in a civil case. They then issue recommended decisions. District Judges who use Magistrate Judges in this fashion find that the process often simplifies the matter by the time it reaches the District Judge on review although there is the added cost to the court and the parties of an extra layer of review. In almost all districts Magistrate Judges are now trying civil cases to final judgment by consent of the parties and the number of such cases is growing. Civil Justice Reform Act plans in many districts are encouraging such consent. If the parties are unwilling to consent to the Magistrate Judges jurisdiction in its entirety they may nevertheless consent to the Magistrate Judge involving with finality a particular motion such as a motion for preliminary injunction or for summary judgment or trying a particular issue in a case for example the voluntariness and validity of a purported settlement that must be resolved before the underlying tort can be tried. Finally the parties frequently consent to letting the Magistrate Judge impanel the jury in a civil case thereby saving the District Judge's time to conduct sentencing or other trials. There are some novel uses of Magistrate Judges that have not yet received general appellate approval and I will therefore mention them only in passing these include reversing the presumption of consent and requiring the parties to indicate that they declined to consent to the Magistrate Judge's jurisdiction and use of Magistrate Judges to conduct Rule 11 proceedings on a guilty plea in a felony case and then recommend to the District Judge whether to accept the guilty plea. I have been speaking by the way of full-time Magistrate Judges. Many districts have part-time Magistrate Judges often located in areas that have no other federal judicial resources. Most part-time Magistrate Judges devote their time to misdemeanor and petty offense cases and preliminary procedures in felony cases but they are able to handle civil duties if so designated by the District Court. I turn now to the methods of assigning duties to Magistrate Judges. The basic criminal matters are usually assigned routinely by local rule, standing order or custom and practice. For the rest of Magistrate Judge's functions there are many variations among the 94 districts on how they receive their assignments but the following basic patterns can be identified. In some districts District Judges refer a particular case to a Magistrate Judge for all pretrial proceedings. The Magistrate Judge then conducts all matters up to a specified point such as final pretrial conference unless the District Judge revokes the reference. More often a local rule or standing order directs the Magistrate Judges have responsibility for certain categories of matters. They then routinely receive all such matters directly from the clerk's office subject to some adjustment from time to time depending upon the respective workloads of the Magistrate Judges and District Judges and the emergency needs of the case. In a growing number of districts the entire Civil Docket is being divided among all the District Judges and Magistrate Judges as the cases come in. The Magistrate Judge is then responsible for his or her docket just as the District Judge is. If there is no consent by the parties by a specified event in the progress of the case then the case is reassigned to a District Judge. In some districts a Magistrate Judge is paired with one or more District Judges and automatically conducts the District Judge's pretrial management and motions. This procedure has also been carried a step farther such that the Magistrate Judge participates on a civil trial list with the District Judge and is ready to try the case if the District Judge is already in trial unless the parties decline to consent. A District Judge may also assign a particular motion or matter to a Magistrate Judge, for example a summary judgment motion, but otherwise retain complete control over the case for all other matters. Whatever the duties the Magistrate Judges perform, the remaining question for a District Judge is how to review Magistrate Judge's decisions if they are challenged. Title 28, United States Code, Section 636 and Rule 72 of the Federal Rules of Civil Procedure make clear that there are two standards of review. One is de novo review, the other standard is clearly erroneous or contrary to law. Generally speaking all non-dispositive matters are subject to the weaker standard of review. As a consequence a District Judge is not to substitute his or her own judgment for what would be an appropriate ruling in the case, but rather is to determine only whether what the Magistrate Judge has done is clearly erroneous or contrary to law. In the so-called dispositive category of cases on the other hand, the District Judge must review the record and make a de novo decision provided that the parties have properly and timely presented their objection. Even here substantial economies can be achieved because the District Judge may be able to review a transcript quickly rather than sit through an entire evidentiary hearing. The District Judge is certainly likely to have a much better focused presentation by the lawyers as to what is in dispute following the Magistrate Judge's recommendation. Nevertheless, care and attention should be given in deciding which dispositive motions to assign to the Magistrate Judge because the practice can easily lead to a wasteful duplication of judicial and attorney time and effort, especially when only questions of law are involved. Then the result is unnecessary delay and increased attorney fees. Customarily in a de novo review case, the parties can be confined to the record made before the Magistrate Judge. The District Judge obviously has the option to reopen the record, but doing so in any but the extraordinary case is likely to lead to abuse of the process by lawyers. District Judges can encourage lawyers to give more credence to Magistrate Judge's decisions by insisting that they present all their arguments, issues, and evidentiary disputes to the Magistrate Judge and not save them for review of the decision before the District Judge. A procedure that is also unfair, I might add, to the opposing party. Finally, District Judges should be acutely conscious of the long-term significance of their decisions affirming or reversing Magistrate Judges. To the extent that District Judges show full confidence in the Magistrate Judge by routinely affirming when they conclude that the Magistrate Judge's decision is essentially correct, they will discourage frivolous appeals by the bar in future cases. Routinely second guessing the Magistrate Judge on the other hand, or affirming the Magistrate Judge but only after a complete reworking of the opinion, will probably reduce the time-saving element of using Magistrate Judges and encourage future appeals. As in so many other matters in the Federal District Courts, local traditions and cultures vary greatly from district to district. As a result, in a few districts there is still resistance to the wide use of Magistrate Judges and concern about maintaining District Judges' privileges and status. In most districts where Magistrate Judges have been widely used and given the full authority available to them under the statute and rules on the other hand, the workload has been handled in a more effective and efficient manner and District Judges have been well satisfied with their performance. The Magistrate Judges Committee of the Judicial Conference has endorsed the view that courts should give Magistrate Judges the widest responsibility possible. Full utilization enhances the District's ability to attract outstanding applicants. Some of the best state trial judges have become willing to apply for the position given its responsibility, salary and retirement benefits. The result has been important and able assistance to the District Judges with no apparent loss of prestige or control over the docket. Indeed, more than 60 of your colleagues, District and Circuit Judges, were previously Magistrate Judges and the number is growing. You, of course, must work within the confines and traditions of your own District, but I urge you to give Magistrate Judges the widest responsibility possible and to treat these able judicial officers with respect and dignity as befits their important responsibilities.