By: Cynthia Devasia, Esq. and Andreas Koutsoudakis, Esq.

Imagine your firm is representing a defendant in a § 1983 civil rights case. At the inception, the district judge assigned to the case seeks the parties' consent to disposition of the case by a magistrate judge. This often occurs at the first Rule 16 conference before the district judge, so don't get caught flat footed. As is often the case, the district judge may not disclose the name of the magistrate judge unless asked. Since your firm's decision as to whether or not to consent may depend greatly on who the magistrate judge is, don't be shy to ask that question immediately. Once you know who the intended magistrate is, and before you decide whether or not to consent, it is important that you know what a magistrate judge is and what authority she will have in your case.


Simply put, a magistrate judge is a judge who, pursuant to 28 U.S.C. § 631 et seq., is authorized to assist the district courts and judges in managing and resolving criminal and civil cases. The office of the magistrate judge was first created by the Federal Magistrates Act of 1968. With that legislation, Congress sought to improve the judiciary's efficiency and assist federal district court judges facing overflowing dockets. The new magistrate judge system replaced the old commissioners system which had developed under the Judiciary Act of 1789 and operated within the federal courts for nearly 175 years. Since 1968, Congress has clarified and expanded the role of the magistrate judge through a number of other legislative enactments.

Today, magistrate judges conduct preliminary proceedings in both criminal and civil cases, conduct certain trials and perform any other duties delegated to them by the district judge as long as they are not inconsistent with the Constitution and laws of the United States. 28 U.S.C. § 636. In 2010, magistrate judges disposed of 1,027,191 matters. These matters included preliminary criminal proceedings such as search warrants, arrest warrants and summonses, evidentiary hearings, pretrial conferences, probation/supervised release hearings, and guilty plea proceedings. Civil proceedings conducted by magistrates included deciding dispositive and non-dispositive motions, fact finding for preliminary injunction motions, pretrial conferences, settlement conferences, mediations, evidentiary hearings, social security appeals, and special masterships. Trials conducted by magistrates included civil consent trials and misdemeanor/petty offense cases. Magistrate judges were also involved in prisoner litigation matters such as state and federal habeas corpus cases, civil rights cases, and evidentiary hearings.

There are currently 571 magistrate judge positions in the federal district courts with 527 fulltime positions, 41 part-time positions and 3 combined positions. The number of magistrate judgeships is determined by the Judicial Conference. Unlike district judges, magistrates are not appointed by the President and approved by the Senate; they are appointed by the respective district court judges based on recommendations from merit selection panels made in accordance with statutory guidelines and standards established by the Judicial Conference of the United States. Prospective candidates are subject to a rigorous screening process
which includes background checks and interviews. Magistrate judges do not enjoy lifetime appointment. Full time magistrates serve eight-year terms that are renewable by vote of the federal district judges, with part-time magistrates serving four-year terms. There is also an age limit for service: 70 years of age with certain exceptions. A magistrate judge may be removed during her term by the district judges for "incompetency, misconduct, neglect of duty, or physical or mental disability". 28 U.S.C. § 631(i). The Judicial Conference may also extinguish a position if it is deemed no longer necessary.

Since your district judge asked you whether or not to consent to the magistrate judge, you get to "opt-in" to the magistrate's authority. You should be aware that some districts automatically assign cases directly to the magistrate judge and it will be up to the parties to decline consent. Parties may consent to the magistrate for all purposes including trial. A judgment issued in a case in which the magistrate is given full consent may be appealed the same way in which a judgment issued by a district judge is appealed. Absent consent, matters that are referred to the magistrate for Reports and Recommendations are reviewed and decided by the district judge.


Non-dispositive Matters

Assume you or your adversary declined to provide full consent to the magistrate judge and the district judge still refers all non-dispositive pretrial discovery matters to the magistrate judge. After confirming a discovery plan with the magistrate judge and engaging in some discovery, you file a motion for a protective order seeking to prevent the plaintiff from obtaining certain information. The magistrate denies your motion. Now what?
Since the case is before the magistrate without the consent of all parties, and the motion you filed is a non-dispositive one - i.e., it does not involve a disposition of a claim or defense of a party - the ruling/order, while effective when it is made, is appealable to the district judge. Given the sensitivity of the information sought to be protected, you decide to do so. Accordingly, you file and serve a brief outlining your objections (along with a copy of the order) within 14 days of the date the magistrate's order was issued. Your adversary has 14 days to respond to your objections.

Because the Federal Magistrate Judge Act (28 U.S.C. § 636(b)(1)(A)) authorizes magistrate judges to issue orders resolving certain pre-trial matters without the parties' consent, the district judge will set aside the magistrate's order denying your motion only if it is "clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a). A finding is "clearly erroneous" when, after considering all of the evidence, the district judge is convinced the magistrate judge made a mistake in her ruling. A finding is contrary to law if the district judge concludes the magistrate judge misinterpreted or misapplied the law. This standard of review is significantly high, and provides great deference to the magistrate's ruling. As such, litigants should be aware that the chance of success is often low in such cases.

Dispositive Matters

After unsuccessfully appealing the magistrate's order, you are forced to provide your adversary the information you sought to protect. The information was so helpful to her case that she decides to file a motion for summary judgment on three of the five causes of action against your client. Since a summary judgment motion involves disposition of a claim - here, three claims - it is considered a dispositive matter; the magistrate does not have statutory authority to issue a final order. Because the parties declined to consent to the grant of such authority in this case, the magistrate is left with only the authority to provide a Report & Recommendation ("R & R") for the district judge's consideration when ruling on
the motion.

This time, unlike the protective order motion, the magistrate judge's R & R is favorable to your client since it recommends the district judge deny plaintiff's motion for summary judgment. While you would like the same deferential standard that applies to nondispositive motions to apply here, the district judge's review is based on a de novo standard. Because of this, your adversary naturally files and serves her objections to the magistrate's R & R. As with appeals of non-dispositive orders, the time limit to do so is 14 days from the issuance of the R & R and you have an additional 14 days to respond.

A de novo review gives the party objecting to the R & R a second opportunity to address the unfavorable aspects of her arguments, and requires the district judge to make her own determination after reviewing the facts and the law - as opposed to affirming or reversing the magistrate's order on a non-dispositive matter only when it is "clearly erroneous". Even though the R & R is not binding, the magistrate's R & R still has a significant impact on the district judge's decision. Specifically, the R & R provides a recommended ruling on the motion supported by a thorough analysis of the evidence, the applicable law and the parties' arguments. Often times, the magistrate is one who regularly handles specific types of cases, and may, therefore, be more current on the applicable law than the district judge. Accordingly, the magistrate's R & R has significant credibility with the district judge.

In addition to knowing what a magistrate judge is, what her authority is and how binding her rulings are, there are certain other considerations to keep in mind when deciding specifically whether you should consent to the magistrate judge's jurisdiction in whole or in part. A good discussion of those considerations can be found in Should you Consent to the Magistrate Judge? Absolutely, and Here's Why, 37 LITIGATION 2 (Winter 2011).

Now that you have an understanding of the magistrate judge's purpose, role, and authority in federal court matters, you can make an informed decision the next time you are faced with this issue.

Cynthia Devasia and Andreas Koutsoudakis are litigation attorneys at Koehler &Isaacs LLP, a full service law firm located in New York City. They can be reached at and