CHART G

TABLE M-3.-U.S. DISTRICT COURTS: MATTERS DISPOSED OF BY U.S. MAGISTRATES PURSUANT TO

1 Excludes trials of minor offenses pursuant to 18 U.S.C. 3401. See chart E (table M-1).

V. DESCRIPTION AND ANALYSIS OF MAGISTRATE PRACTICE IN THE SOUTHERN DISTRICT

Our interviews with the various magistrates and judges of the Southern District gave us important insights into the way in which the magistrates function in this district. Generalizations are almost impossible. Judges operate under the Individual Assignment System, which means that each uses magistrates in his or her own fashion and coordinates them with his or her own individual calendar practices. The magistrates, too, function quite independently and devise their own procedures in light of their particular needs and predilections. To that extent, the magistrate system is a "non-system". To some observers, that is the most attractive aspect of the "magistrate system"; to others it is the biggest drawback. Without attempting to resolve that controversy, this section of the Report tries to provide a glimpse into that "non-system".

1. Criminal Cases

In the Southern District, the magistrates' dockets consist primarily of civil cases. The magistrates estimated that 20 percent of their work involved civil matters; the statiscial analysis places it closer to 75 percent (See Charts A and B). Most of the magistrates believe that they could and should undertake more criminal work, and noted that under the Magistrates Act, the magistrates had the power, inter alia, to hold extradition hearings, to conduct bail hearings, to conduct preliminary examinations, and to conduct (with the defendant's consent) trials of minor offenses as defined in 18 U.S.C. § 3401. Apparently, however, the magistrates in the Southern District conduct very few preliminary examinations, and extradition hearings before the magistrates are rare. Bail hearings comprise most of their criminal docket. One magistrate noted that the Southern District local rules, which are the source of the magistrates' authority in criminal cases, did not authorize magistrates to issue warrants of removal in criminal cases. He suggested an amendment of the local rules to permit this additional duty.

Since the United States Attorney's Office in the Southern District of New York is "felony-oriented", the provision for trial of minor offenses before magistrates is relatively unimportant. One of the magistrates observed that in some district courts, the magistrates-as they are empowered to do call the criminal calendar for the district judges, and he suggested that the magistrates might perform this function in the Southern District. It was also suggested that the magistrates might be used to take pleas. However, several of the judges noted that in the Southern District, many of these criminal matters were adequately handled by the Part I judges and that there was really no need to move these matters to the magistrates. Additionally, difficulties apparently can often arise later in the proceedings if a magistrate rather than a judge takes a plea.

With the impact of the Speedy Trial rules on the handling of criminal cases, many of the magistrates thought that there was an increased role for the magistrates in criminal cases in the Southern District. Such power, they said, exists under the present statute and it need only be exercised.

2. Civil Cases

Since most of the magistrates' caseloads in the Southern District of New York involve civil litigation, this report focuses primarily on the role of the magistrates in civil cases. This role is becoming increasingly important as the speedy trial rules in criminal cases are implemented, thereby forcing district judges to try criminal matters on a priority basis. The use of the magistrates to conduct discovery and hear pretrial motions-or, with consent of the parties, to try an entire civil case has evidently helped to alleviate a growing backlog of civil cases. As noted earlier, the Magistrates Act and the Local Rules of the Southern District of New York have been the primary sources of authority for referring civil matters from judges to the magistrates. However, it is the individual judge who decides for himself or herself whether and in what circumstances a magistrate should be used. Therefore, it is not surprising that there is a broad spectrum of opinion as to how the magistrates should be used.

Some judges make almost no use of the magistrates and refer virtually no matters to them. These judges believe either that a litigant has the "right" to an Article III judge or that references to a magistrate are inconsistent with an individual calendar system which envisions that the trial judge will be familiar with the entire case. Most judges on the Southern District, however, do not agree with this philosophy, but their practices nonetheless differ widely. A few judges

send large numbers of their civil cases to magistrates, who then take over the status call, supervise discovery, or attempt to get the parties to settle the matter. Some judges send their cases to the magistrate at the early stages of the litigation; others wait until after discovery is completed to refer cases and then send them to the magistrate to prepare the pretrial order. Some judges utilize all the magistrates equally; others refer matters only to particular magistrates with whom they can most comfortably work. A few judges use the magistrates on occasion to hear a case-dispositive motion, e.g., a motion for summary judgment, or to hear prisoner petitions for post-trial relief. In several cases, judges have referred cases to magistrates for trial where the parties have consented. One judge indicated that he thought that this was a more appropriate role for the magistrate than the handling of pretrial matters.

Most of the judges have taken a relatively balanced approach in referring matters to the magistrates. They refer specific cases to magistrates-primarily for pretrial purposes-when assistance seems to be warranted, and they handle other cases without the aid of magistrate assistance, when such help seems unnecessary.

The flexible and unstructured manner in which Southern District judges are able to refer matters to magistrates results partly from the nature of the Individual Assignment System (which necesarily reflects the individual judge's preferences and practices) and partly from the nature of the magistrate system itself (which is designed to provide assistance for each judge). Cases are referred to a magistrate in one of two ways. A matter may be referred by the judge to the Administrative Magistrate, who then assigns the cases to one of the magistrates depending upon their calendars and schedules. Or, a judge may avoid the route through the Administartive Magistrate by referring a matter directly to a particular magistrate. In some instances, one finds a particular judge using only one or two magistrates; other judges directly apportion their work among all the magistrates.

When questioned about the desire for a uniform system of referring cases to magistrates, the magistrates and judges-while agreeing that uniformity might be theoretically desirable said that such uniformity was impossible as a practical matter, given the Individual Assignment System and the fact that the magistrates were employed to act as "assistants" to the judges and to provide services for their benefit. With individual judges running their own calendars and determining how best to use the magistrates, it was felt that all options for taking advantage of this judicial assistance should be kept open.

One proposal which surfaced several years ago suggested that each magistrate should be assigned to work primarily for a particular group of judges. The judges were opposed to the idea. Both the magistrates and the judges appear to agree that flexibility in the system must be retained and that individual judges must have as much latitude as possible in deciding how and when to use a magistrate. The magistrates in the Southern District indicate that their case dockets consist largely of cases sent to them for "all pretrial purposes": conducting pretrial conferences, scheduling discovery deadlines, and deciding discovery motions. This situation has existed since the Magistrates Act in 1968 first authorized the use of magistrates for "assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions". In the Southern District of New York, orders of reference in such matters often provided that the magistrates' rulings on discovery motions would be final unless exceptions were filed within a ten-day period. (See, e.g., Uniroyal, Inc. v. Jetco Auto Service, Inc., 75 Civ. 921 S.D.N.Y. Mar. 18, 1976).

This reference procedure, when invoked, removed a heavy discovery burden from the district judge since, for all practical purposes, the magistrate's decision was rarely taken before the judge on an appeal. However, it should be noted that prior to the October 1976 amendment, magistrates' discovery orders and rulings on discovery motions were not technically final, and while the orders of reference attempted to make them so, some magistrates, on discovery matters referred to them, filed a report directly with the judge who would then approve or disapprove the ruling.

One magistrate explained that his practice on discovery was to issue his report and then invite counsel to submit objections which were filed along with the ruling for review by the judge. Another magistrate said that in complicated antitrust or securities cases, involving many objections to documentary discovery or to interrogatories, he conducted his hearings with a court reporter

present. The transcript of the proceedings, containing both his rulings and the parties' objections, would then be sent to the judge as the magistrate's report and recommendation. This procedure eliminated the task of drafting a full report setting out the disputed issues, the respective positions of counsel, the magistrate's ruling and his reasoning, all of which appear in the transcript. The main drawbacks of these practices were that the use of the magistrate at the discovery stage necessarily added a second tier of judicial involvement in discovery motions, even though the magistrate would have narrowed the issues and clarified the legal positions of the parties by the time the matter came on before the judge. The October 1976 amendment gave the magistrates the authority to decide discovery and non-dispositive pretrial matters referred to them, making their determinations final. Reversal of these determinations on "appeal" to the district judge is permitted under the amendment only if the magistrate's order is "clearly erroneous or contrary to law."

To the extent that the original Magistrates Act left unresolved the status of magistrates' rulings in the discovery area, the 1976 amendment removed this ambiguity by making it clear that the magistrate's ruling is a decision, not a recommendation. It is true, of course, that some of the magistrates and judgesthrough the wording of the orders of reference reached this same result under prior practice. Now, however, it is settled that the magistrates' determinations are final decisions, although they may be appealed.

The magistrates estimate that only a small percentage (5-10%) of their discovery rulings are appealed to the district judge, and of these relatively few are reversed. Moreover, it is usually only in the complicated case or on the difficult legal issue that an appeal is taken. Thus in the ordinary case, the fear that extra layers of judicial decision-making result from references to magistrates is unwarranted. It should be noted, however, that one judge commented that he has recently noticed an increase in appeals from the magistrates on discovery motions. He attributed this in part to the 1976 amendment which specified that an appeal could be taken from the magistrate's determination. Other judges have stated that they have not seen any such trend. The likelihood of appeal, therefore, is probably dependent on a host of variables: the type of matter that is referred, the stage of the litigation when the matter is referred, the nature and form of the decision, which magistrate has decided the motion, and which judge has referred it and will hear the appeal.

Procedures for obtaining review of a magistrate's determination vary among the judges and magistrates in the Southern District. The 1976 amendment did not specify what procedures should be followed when raising objections to nondispositive pretrial matters" decided by the magistrate pursuant to Section 636 (b) (1) (A). Congress took the view that a uniform practice among all the districts courts was impractical and therefore left individual district courts to set their own rules based on their particular needs and situations. However, the local rules of the Southern District have not yet been amended to establish a uniform practice for appeal of these matters. Most judges and magistrates agree that a uniform practice implemented through a specific local rule would be desirable, although there is some sentiment that individual flexibility should continue, with individual judges and magistrates establishing their own methods of proceeding on appeal of these matters.

Specific motions are also often referred to magistrates, after which the case is returned to the judge for other purposes, including trial. These kinds of motions include jurisdiction and venue motions, class action determinations, disqualification motions, and occasionally summary judgment motions. Prior to the 1976 amendment, the magistrates filed their report and recommendations with the judge, who would approve or disapprove the ruling. As in the discovery area there was little uniformity of practice in this regard. Occasionally a preliminary report would be sent to the parties who could raise objections before the magistrate and then the report would be sent to the judge. Usually, the magistrate's report would be filed with the judge, and the parties would file written objections. It was not clear whether application to the court for action upon the report had to be made pursuant to the provisions of Federal Rule 53 (b) (dealing with the procedures for a master's report) or whether the district judge on his own initiative could consider the matter in light of the magistrate's report. Local rules did

Statutory procedures are established in Section 636(b) (1) (C) for review of casedispositive matters and prisoner petitions referred to magistrates for hearing and recommendation pursuant to Section 636 (b) (1) (B).

not specify the appropriate procedure, and individual judges and magistrates apparently proceeded differently.

The 1976 amendment helped to clarify the appropriate manner of proceeding for it gave the magistrates specific authorization to hear and make recommendations on "case-dispositive" motions (judgment on the pleadings, failure to state a claim, summary judgment, and involuntary dismissals), applications for class action certification and injunctive relief, and prisoner petitions. (See Section 636 (b) (1) (B) (1976)) 10 Specific procedures are set forth in the statute for reviewing these "recommendations." (See Section 636 (b) (1) (C).) The magistrate's proposed findings and recommendations must be filed with the court. A copy is thereupon mailed to the parties, who must file specific objections in writing within ten days. The ultimate adjudication of the matter rests with the district judge who decides the matters objected to "de novo." On all other motions, including those which raise jurisdictional questions, the magistrates are empowered to hear and determine the matter, and an appeal may be taken to the district court. However, as noted previously, there are no uniform procedures for appeals spelled out in the Act or in the local rules for this latter class of motions, and thus the practices vary extensively.

Reference of specific motions by judges to magistrates is less frequent than references for all pretrial purposes (See Chart B). Magistrates usually hear discovery and pretrial motions when they surface after the general pretrial reference. However, on some occasions judges do refer particular motions, especially those which involve an evidentiary hearing as to the underlying facts: e.g., motions to dismiss for lack of jurisdiction or forum non conveniens. Most judges have indicated that they are not likely to refer the "case-dispositive" types of motions like summary judgment and failure to state a claim, or motions more substantive in nature like applications for injunctive relief and prisoner petitions. They believe that they can handle these matters more expeditiously than the magistrates, especially since any magistrate report on such a matter must, in any event, be approved by the district judge."

Another role filled by the magistrates is that of advancing the chances of settlement. Many of the magistrates expressed the view that this was the greatest justification of the magistrate system. Since the magistrate is not likely to try the case he can take an active role in trying to encourage settlement without fear of prejudicing any later decision as to the merits of the controversy. Most of the magistrates said that they themselves raised the issue of settlement with the lawyers. Since the magistrates function in a somewhat more informal atmosphere than the district judges, settlement possibilities may be enhanced. Magistrates have also been credited with helping to resolve disputes over discovery without the need for formal motions and arguments. Obviously, the personality of the magistrate has much to do with his effectiveness in helping the parties settle cases and/or eliminating costly discovery disputes. But both judges and magistrates agreed that the magistrates have been effective in encouraging appropriate settlements and eliminating needless discovery disputes.

Another area where the magistrates have been used rather sparingly but with increasing frequency is in trying particular issues or entire cases with the consent of the parties. There was some authority for such a role for the magistrate even prior to the 1976 amendment, and the amendment made it clear that a magistrate could serve as a special master, upon consent of the parties, without regard to the exceptional circumstance required under Federal Rule 53 (b).

In the Southern District, a few judges are referring entire cases to the magistrate for trial and on several occasions cases have been referred to magistrates to be tried with a jury. Many of the magistrates and judges believe that this is an area where the magistrates can be quite useful and express confidence that magistrates have the qualifications and competence to try various types of civil matters. Indeed, as pointed out earlier, one judge indicated that he believed magistrates would better be used to try particular kinds of single-issue cases in the federal courts than as assistants on pretrial discovery.

There was some sense that express authorization-either in the Magistrates Act itself or in the local rules-for both jury and non-jury trials by magistrates would be helpful in encouraging more judges to make such references. It should

10 Set out in Appendix B.

11 Procedures for review of magistrates' recommendations are set out in Section 636 (b) (1) (C) as amended in 1976. See Appendix B.