Schmidt v. Johnstones

• Citation: 263 F.Supp.2d 1219
• Decision Date: 18 June 2003
• Docket Number: No. CV-02-0349-PHX-TAT.,CV-02-0349-PHX-TAT.
• Parties: Diellind SCHMIDT, Petitioner, v. JOHNSTONE, Respondent.
• Court: U.S. District Court — District of Arizona

263 F.Supp.2d 1219

Diellind SCHMIDT, Petitioner, v. JOHNSTONE, Respondent.

No. CV-02-0349-PHX-TAT.

United States District Court, D. Arizona.

June 18, 2003.

Diellind Schmidt, Florence, pro se.

Cynthia M. Parsons, U.S. Attorney's Office, Phoenix, AZ, for Johnstone.

ORDER

TEILBORG, District Judge.

Pending befpre this Court is the Report and Recommendation (R & R) by Magistrate Judge Lawrence Anderson entered on March 10, 2003 (Doc. # 28). In the R & R, the Magistrate Judge recommends that this Court deny Petitioner Diellind Schmidt's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. #1).

In the R & R recommending that the Petition be denied, the Magistrate Judge advised the parties that (1) they had ten days to file specific written objections to the R & R and (2) the failure to timely file objections to any of the Magistrate Judge's factual determinations would be considered a waiver of the rights to de novo and appellate review of such determinations. (R & R at 5.) The parties did not file objections to the R & R.

STANDARD OF REVIEW

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). "Within ten days after being served with a copy [of a report and recommendation], any party may serve and file written objections.... [T]he court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). Moreover, 28 U.S.C. § 636(b)(1) does not "requiref ] some lesser review by the district court when no objections are filed." Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Instead, district courts are not required to conduct "any review at all ... of any issue that is not the subject of an objection." Id. at 149, 106 S.Ct. 466.

The petitioner in Thomas argued that 28 U.S.C. § 636(b)(1) distinguishes between factual and legal issues. Specifically, petitioner argued that "the obligatory filing of objections extends only to findings of fact .... [Congress] intended that the district judge would automatically review the magistrate's conclusions of law." Id. at 150, 106 S.Ct. 466. The Supreme Court rejected this argument and found that the circuit courts of appeal were free to adopt rules requiring petitioner to file objections to the legal conclusions in order to trigger review by the district court. See id. at 152, 106 S.Ct. 466 ("We thus find nothing in the statute or the legislative history that convinces us that Congress intended to forbid a rule such as the one adopted by the Sixth Circuit.").¹

The Supreme Court's holding, however, does not compel the inverse conclusion; i.e., simply because the statute does not compel district court review of the magistrate judge's unobjected legal conclusions, it does not follow that the courts of appeals are precluded from promulgating such a rule. See Greenhow v. Secretary of Health and Human Services, 863 F.2d 633, 636 n. 1 (9th Cir.1988) ("While holding that the Sixth Circuit rule was a valid exercise of federal appellate supervisory power, [Thomas] did not compel its adoption by the rest of the courts of appeals."), overruled on other grounds United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (rejecting Greenhow's method for resolving intra-circuit conflicts); see also Douglass v. United Services Automobile Association, 79 F.3d 1415, 1420, 1429 (5th Cir.1996) (en banc) (noting that Thomas acknowledges the courts of appeals' supervisory power to adopt such rules).

The Supreme Court recognized that there were two distinct issues for the Article III courts in accepting the recommendations of a magistrate judge in the absence of objections; (1) whether the district court accepts the magistrate's recommendations; and (2) whether the court of appeals will review the decision. See Thomas, 474 U.S. at 152-153, 106 S.Ct. 466 (treating these issues as separate questions). The Supreme Court reviewed the history and purpose of the Federal Magistrates Act and determined that Congress intended to give assistance to the district judges without shifting the burden to the courts of appeals:

The Act grew out of Congress' desire to give district judges "additional assistance" in dealing with a caseload that was increasing far more rapidly than the number of judgeships. Congress did not intend district judges "to devote a substantial portion of their available time to various procedural steps rather than to the trial itself." Nor does the legislative history indicate that Congress intended this task merely to be transferred to the court of appeals.

Id. (internal citation omitted).

After deciding that neither the Constitution nor the Federal Magistrates Act require district courts to conduct any review of a magistrate judge's unobjected-to recommendations, id. at 152, 106 S.Ct. 466, the Supreme Court separately addressed the issue of whether the failure to file objections can waive appellate review of the decision:

The waiver of appellate review does not implicate Article III, because it is the district court, not the court of appeals, that must exercise supervision over the magistrate. Even assuming, however, that the effect of the Sixth Circuit's rule is to permit both the district judge and the court of appeals to refuse to review a magistrate's report absent timely objection, we do not believe that the rule elevates the magistrate from an adjunct to the functional equivalent of an Article III judge. The rule merely establishes a procedural default that has no effect on the magistrate's or the court's jurisdiction.

Id. at 153-54,106 S.Ct. 466.

Accordingly, under Thomas, the circuit courts of appeals are allowed to establish rules regarding (1) the level of district court review, if any, of a magistrate's unobjected-to recommendations, and (2) the level of appellate review, if any, when the district court has accepted the unobjected-to recommendations of the magistrate. Thus, it is necessary to review the Ninth Circuit cases that have addressed this issue in order to determine whether the Ninth Circuit has promulgated such rules.

Ninth Circuit Cases. The relevant portions of the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), were amended by Congress in 1976 to clarify "Congress' intent to permit magistrates to hold evidentiary hearings and perform other judicial functions." Thomas, 474 U.S. at 153, n. 12,106 S.Ct. 466. Therefore, with one exception, Ninth Circuit cases decided prior to 1976 may be disregarded.

The one exception, Campbell v. United States Dist. Ct, 501 F.2d 1% (9th Cir. 1974), remains relevant because the legislative history of the 1976 Federal Magistrate Act amendments quoted Campbell tor the proposition that if "neither party contests the magistrate's proposed findings of fact, the court may assume their correctness and decide the motion on the applicable law." See Thomas, 474 U.S. at 150, n. 9, 106 S.Ct. 466.² The petitioner in Thomas argued that this quote from the legislative history evidenced Congressional intent to require de novo review of a magistrate's legal conclusions. Id,

The Supreme Court disagreed and found that the quoted language from Campbell "was part of a longer quotation setting a de novo review standard when objections are filed.... We believe, therefore, that the House Report used the language from Campbell only to support a de novo standard upon the filing of objections and not for any other proposition." Id. (emphasis added). Thus, as interpreted by the Supreme Court, Campbell does not provide Ninth Circuit guidance on the need for review of unobjected-to magistrate recommendations.

The Ninth Circuit next considered the issue of objections to a magistrate's recommendations in McCall v. Andrus, 628 F.2d 1185 (9th Cir.1980). There, the Ninth Circuit noted that the plaintiff was "barred from raising this issue because he failed to object to the magistrate's recommendation that the trial court find that there was substantial evidence in the record to support the Board's decision." Id. at 1189. The court of appeals only addressed appellate review, however, and did not offer citation or analysis for its statement. Moreover, the court of appeals proceeded to address and reject the merits of plaintiffs contested legal issue. Id. McCall, therefore, is not helpful in determining the correct procedure to be employed by the district court in evaluating a magistrate's unobjected-to recommendations.

Three years later, in Britt v. Simi Valley Unified School District, 708 F.2d 452 (9th Cir.1983), the court of appeals concluded that 28 U.S.C. § 636(b) and Article III of the U.S. Constitution required a rule allowing a party to contest a magistrate's legal conclusions even when no objections were filed:

The [Federal Magistrate] Act's sponsors made it clear that magistrates remain subject to the supervision of the district judges and that the authority for making final decisions remains at all times with the judge.

Under § 636(b)(1)(B) the authority and the responsibility to make an informed final determination rests with the judge. The delegation of duties to the magistrate does not violate Article III if the ultimate decision is made by the district court.

The court's power to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" exists whether objections have been filed or not. The district court must decide for itself whether the magistrate's report is correct. Without this judicial review, the magistrate's performance of the inherently judicial act of granting a motion to dismiss would be constitutionally suspect. This court has held that a district court with responsibility to make an ultimate decision based on a magistrate's recommendation under § 636(b)(1)(A) should consider the legal issues involved, [citing Campbell]. We have also held that, in a § 636(b)(...