Tis’ nobler in the mind to suffer,
The slings and arrows of legal misfortune,
Or to take arms against a sea of troubles,
And by opposing end them.
To object, or not to object—to the magistrate judge? That is the question.
Federal district courts, including the District of Rhode Island, are staffed by District Judges and Magistrate Judges. District Judges are nominated by the President, confirmed by the Senate, and enjoy Article III (lifetime) tenure. Magistrate Judges assist District Judges with their civil and criminal caseloads, and also have specific statutory duties, primarily with pre-trial criminal matters. Unlike District Judges, Magistrate Judges serve eight year terms and do not have the protections of Article III of the Constitution. Because Magistrate Judges do not enjoy lifetime appointments, they have less authority to render final decisions in cases. The basic legal idea is that it’s better to have someone with lifetime tenure calling the shots. Congress has outlined Magistrate Judges’ authority primarily in 28 U.S.C. § 636. Magistrate Judges are similar to bankruptcy judges, who also do not have lifetime tenure. (Visit this page for an official overview of Magistrate Judges in the federal courts).
Each case in the District of Rhode Island is staffed by one District Judge and one Magistrate Judge. In civil cases, District Judges serve as the presiding judicial officer and have the discretion to refer two types of issues within cases to Magistrate Judges. The first type is a dispositive issue, which means that if the issue is decided in favor of one of the parties, it will end part or all of the case. Dispositive issues are usually motions to dismiss or for summary judgment, but they can also be things like motions to exclude an expert opinion, which if granted will leave a litigant without the ability to prove an essential element of the case. Unless all parties to a case consent, a Magistrate Judge does not have the authority to issue a final order on a dispositive question, and the docket notation on dispositive referrals will say something like “matter referred to magistrate judge for report and recommendation.”
The other type of referral is pretty much everything else that comes up that won’t end the case regardless of the Magistrate Judge’s decision. These types of issues are called “non-dispositive,” and the docket notation on the referral from the District Judge will state “matter referred to magistrate judge for determination.” Typical non-dispositive motions include motions to compel discovery or for extensions of time. Whether an issue is dispositive or non-dispositive is not always clear cut, and sometimes Magistrate Judges and District Judges opine on the distinction. See, e.g., Credit Ne., Inc. v. Gloal Equity Lending, Inc., 748 F. Supp. 2d 134, 137 (D.R.I. 2010); Russo v. Baxter Healthcare Corp., 51 F. Supp. 2d 70, 75 (D.R.I. 1999). The clerk’s notation on the docket that an issue is “referred to magistrate judge for determination” (indicating an M&O) or “referred to magistrate judge for report and recommendation” (indicating an R&R) is not always accurate.
When a Magistrate Judge issues a decision on a dispositive issue, the decision is almost always in writing and is usually titled a “report and recommendation” (also known as an “R&R” – here’s an example). It is stylized this way because the Magistrate Judge is recommending an outcome to the District Court, and the Magistrate Judge puts the decision in writing to allow the District Judge to understand the Magistrate Judge’s recommended findings of fact and legal reasoning.
A Magistrate Judge’s decision on a non-dispositive issue is not always in writing. The Magistrate Judge might decide an issue in discovery from the bench during a hearing, and issue a short text order afterward that simply says the motion is denied. In other instances, the Magistrate Judge will explain a decision on a non-dispositive issue in writing in a document titled a “memorandum and order” (also called an “M&O” – this is an example).
Objections to a Magistrate Judge’s decision go to the District Judge assigned to the case instead of the Court of Appeals. The standard of review is different when a District Judge reviews a Magistrate Judge’s decision on a dispositive or non-dispositive issue. For dispositive issues — the so-called R&Rs, the District Judge must review the issue “de novo” under Rule 72(b) of the Federal Rules of Civil Procedure, meaning the District Judge gives the Magistrate Judge’s no deference and must review all aspects of the decision on a clean slate. The idea here is that the Constitution requires an Article III judge (the District Judge) to render a full decision on a case-ending (dispositive) issue. A District Judge can accept all, part, or none of a Magistrate Judge’s R&R.
For non-dispositive issues, which include the M&Os, the District Judge will ordinarily defer to the Magistrate Judges’ decision under Rule 72(a) of the Federal Rules, and only overturn it if the Magistrate Judge made a “clearly erroneous” decision or it is contrary to law.
Objections to R&Rs and M&Os are governed by District of Rhode Island’s local rules. Under Local Rule 72(c) and 72(d), objections to dispositive issues (R&Rs) and non-dispositive matters (M&Os) must each be filed within 14 days of the Magistrate Judge’s decision. Per the local rule, “failure to file specific objections . . . in a timely manner constitute waiver of the right to review by the district judge and the right to appeal the Court’s decision.”
The different standard of review explains the disparity in the dates of when a Magistrate Judge signs an R&R versus when it’s published. Since the District Judge must review an R&R de novo, which sometimes takes months, the R&R is not published until the District Judge accepts it. Here’s an R&R that Magistrate Judge Almond signed on December 26, 2017, but it wasn’t posted until April 2, 2018, presumably because that’s when District Judge Smith accepted the decision (perhaps over an objection). By contrast, a Magistrate Judge’s M&O is posted as soon as the Magistrate Judge signs it because it’s treated as a binding order on a non-dispositive issue.
There’s also a quirk in the District of Rhode Island’s notice to litigants of their objection rights. When the Magistrate Judge issues an R&R, there is almost always a warning at the end of the R&R that reminds the parties that they can object — something along the lines of:
“Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of the Court within fourteen days of its receipt. See Fed. R. Civ. P. 72(b); LR Cv 72. Failure to file specific objections in a timely manner constitutes waiver of the right to review by the District Court and the right to appeal the District Court’s decision. See United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).”
Examples of the objection warning at the end of R&Rs are here, here, and here.
However, for written M&Os on non-dispositive issues, the Magistrate Judge does not include any notice of the parties’ 14-day objection rights. The litigants are expected to know their rights under Rule 72 of the Federal Rules and Local Rule 72. Examples of M&Os without the appeal warning are here, here and here.
One other quirk in the system is that litigants must file an objection with the District Judge to the Magistrate Judge’s decision to preserve the issue later on appeal, regardless of whether the issue is dispositive or non-dispositive. The First Circuit has held repeatedly that failure to object to a Magistrate Judge’s decision, or failing to raise an argument in an objection to the District Judge of the Magistrate Judge decision, waives the issue on appeal to the First Circuit. Purdy v. Berryhill, No. 16-2242, 2018 U.S. App. LEXIS 8462, at *19 n.13 (1st Cir. Apr. 3, 2018) (“appellant did not adequately present these arguments in her objections to the magistrate judge’s recommended decision. They are therefore waived.”); Brenner v. Williams-Sonoma, Inc., 867 F.3d 294, 297 n.7 (1st Cir. 2017) (“Failure to object to a magistrate’s recommendation waives the right to review that recommendation in the district court, and precludes it from being challenged on appeal.”);Unauthorized Practice of Law Comm. v. Gordon, 979 F.2d 11, 14 (1st Cir. 1992) (failing to object to non-dispositive order waives appellate review).
Does this waiver rule make sense? Parties aren’t required to object to District Judge decisions. As long as a litigant makes a coherent and reasoned argument to the District Judge, the issue is preserved for appeal. The litigant does not need to “object” to the District Judge’s decision when it’s made, and the litigant can appeal the issue later to the First Circuit once the case reaches a final disposition at the District Court level. The federal court system did away with the requirement to object immediately to decisions in Rule 46 of the Federal Rules of Civil Procedure, which says that a “formal exception to a ruling or order is unnecessary.”
So why do Magistrate Judge decisions require an extra layer of review for waiver purposes? The waiver rule forces litigants to fully brief an issue before the Magistrate Judge, and then turn around and fully brief the issue again to the District Judge to preserve the issue for appeal to the First Circuit. But if the issue is not referred to a Magistrate Judge and is decided by the District Judge, litigants need only brief the issue once to preserve the appeal. Perhaps the waiver rule saves resources, but it really only saves judicial resources and forces litigants to incur significantly more expenses simply because a District Judge decided to refer an issue to a Magistrate Judge.
The waiver rule is also a strange curiosity because the Supreme Court has stressed that Magistrate Judges cannot render binding decisions on dispositive issues unless all parties consent. But if the Magistrate Judge issues an R&R on a dispositive issue, the R&R will be treated as binding and non-appealable if no party objects to the R&R with the District Judge, regardless of whether a party appeals later to the First Circuit. This is a stretch, though, because it’s hard to assume that all the litigants “consented” to the Magistrate Judge’s jurisdiction over a dispositive issue when those same litigants hotly contested the merits of the dispositive motion before the Magistrate Judge. Silence is not the same thing as consent. In the ordinary course, parties are required to affirmatively consent to a Magistrate Judge’s jurisdiction.
In the end, perhaps the answer to the eternal question — to object or not to object — is in another famous Shakespeare play: if every noise be still, beware the Ides of March.