Appellate Judges

A Hunter or a Howler? Fifth Circuit Chief Judge Unlawfully Implements Threat Management Process Against Elder Victims of Judicial Misconduct

For the Chief Judge to claim the Burkes complaint is merit-based, conclusory and issue a warning violates the Judicial rules as well as in contradiction of Supreme court precedent and in conflict with  ‘The Breyer Report’ standards.

LIT COMMENTARY

As the Judicial Complaint against Senior Judge David Hittner is dismissed by Chief Judge Priscilla Owen, it’s another daily reminder of the unlawful and erroneous opinion of this court in 2016, when it referred to Deutsche Bank National Trust Company as the mortgage servicer as part of a manufactured opinion #15-20201 to reverse and remand in favor of the admonished bank.

Upon review of the threatening dismissal of the Burkes complaint against Hittner, the response is typical of this circuit, it is shambolic, error laden and cynical.

“The Burkes Wanted Certain Judges to be Shot.” – admitted liar Attorney Mark Hopkins stated in open court, intentionally repeated and then concluded by saying he –  “wanted this to end, sooner than later…”

The court has dismissed not only a judicial complaint, but patently condones a lawyer, Mark Daniel Hopkins of Hopkins Law, PLLC, Austin, Texas repugnant acts. Hopkins came before the lower court and falsely accused the Burkes of wanting ‘certain judges shot’ to the apprentice magistrate judge, Peter Bray (under the ‘management’ of Snr United States District Judge David Hittner). The magistrate judge joined in the assault on the Burkes, including stating that this was “way more serious than a counter claim” and shouting at John Burke “Are you a criminal?” – without first fact-checking Hopkins [self-admitted] lies before the court, witnesses and the shocked Burkes.

It is without doubt, a continued threat management tactic with the blessings of the Department of Justice. The Burkes have been under surveillance for an extended period by the United States government responsible for judicial security. The Burkes are hardly the profile for this type of surveillance. However, when the Burkes uncovered and revealed the sheer scope of judicial corruption in the courts and government in the U.S., apparently that is all that is deemed necessary to stalk and abuse these elderly citizens. Any ethics, civility and justice are set aside, indefinitely.

 “Hunters are people who attack without threatening.”

“Howlers are people who threaten without ever attacking.”

–  Department of Justice, Bureau of Justice Assistance.

The Chief’s Decision is Unconstitutional and a Perfect Example of Why Litigants Do not Trust the Federal Judiciary and Why Judges Should Not be Judging Themselves. It’s an Auditor’s Worst Nightmare as this is Rife for Fraud and Corruption, as Witnessed Here.

For the Chief Judge to then claim (see order below) the Burkes complaint is ‘merit-based’, conclusory and issue a warning violates the Judicial rules as well as in contradiction of Supreme court precedent and in conflict with  ‘The Breyer Report’ standards.

As you will see below, combined with the order (PDF version) there is an enclosed pack from the Fifth Circuit regarding the rules. LIT has comprehensive articles including the Rules for Judicial-Conduct and Judicial-Disability Proceedings on our website It’s very evident from the record that this circuit court deals with judicial complaints as an inconvenience, a necessary chore.

This is reflected by the outdated members of the council and also how they list the complaints, as required, on their website.LIT has even replicated their dismissive listings into a simple yet dynamic database of the complaint history.

However, in keeping with this circuit’s disdain for complainants, they fail to maintain the register of complaints in a timely manner e.g. the Burkes complaint is still not listed on the 5th Circuit website.

A review of sister court the 11th Circuit shows a similar style as to what LIT has designed, a tabular, searchable, sortable database.

ASSIGNMENT OF APPELLATE REVIEW PANELS

(As Revised and Readopted)

STEWART, Chief Judge; OWEN, JOLLY, DENNIS, ELROD, SOUTHWICK, GRAYES, HIGGINSON, COSTA, LEMELLE, DICK, HICKS, BROWN, OZERDEN, GODBEY, ROSENTHAL, CLARK, AND MARTINEZ

ORDER

United states Court of Appeals Fifth Circuit

FILED

November 10, 2020
Lyle W. Cayce Clerk

Pro se litigants Joanna Burke and John Burke [“the Burkes”] have filed a complaint alleging misconduct by Senior United States District Judge David Hittner in Burke v. Hopkins, STX No. 4:18-cv-04543.

The Burkes, who describe themselves as “80+ year[s] old,” allege that Judge Hittner engaged in a “consistent pattern of bias” against them.

There is a worldwide plague, a Pandemic which has shut down most of the country and the world. There are ‘stay at home’ orders, especially for the elderly, like the 80+ year old Burkes. People are dying in thousands and the future death statistics look especially grim. Gov. Greg Abbott declared Texas a Disaster State. The Proclamation is signed on March 13, 2020.[14]

For example, the judge:

– denied the Burkes’ motion for electronic filing privileges on February 13, 2020 and, on March 14, 2020, “refused an extension of time to allow the Burkes to amend their complaint when Joanna Burke was gravely ill in hospital,”1 decisions which resulted in Mr. Burke’s having to disregard the Texas Governor’s “stay at home” orders to drive to the courthouse on March 29 during “a worldwide plague” to “hand-deliver the documents … while [Mrs.] Burke was in hospital on her own”;

Fact Check: Wrong dates. Wrong year.

There was no pandemic in 2019 when Joanna Burke was gravely ill in hospital.

Hittner denied the Burkes motion to amend the complaint with known errors due to the fact Joanna was in hospital and the concern was great from the medical staff.  John had to rush to hand deliver the complaint to the court while his wife was in hospital to meet the courts deadline (ECF motion (denied)).  The Burkes provided affidavits along with hospital assessment records. This was insufficient for Hittner who denied the motion and would also make sure the doctors and nurses – who were on the Burkes Expert Witness List – would never be called to testify.

– overruled the Burkes’ objection that Magistrate Judge Bray’s Memorandum and Recommendations was “premature”;

Premature because…..this complaint against David Hittner sat on Owen’s desk for several months and the delay started with the circuit clerks’ maintaining they did not receive the Burkes original EMAILED complaint (March 27, 2020) DUE TO THE PANDEMIC and lockdown IN THE STATE OF TEXAS  to the designated CA5 email which required a reminder a couple of months later to get the complaint even registered with the Fifth Circuit;

 until;

The Eleventh Circuit issued an opinion on Monday, 2nd Nov., 2020 re Burkes Intervention

and;

The Burkes filed their Reply Brief on Friday, 6th Nov., 2020 into the Fifth Circuit appeal (20-20209)

then;

Sunday School Teacher and Chief Judge signs the shambolic order on Sunday, 8th Nov., 2020

and;

it’s officially lettered and posted on Tuesday, 10th Nov., 2020 by regular mail only

and;

The Order hasn’t been added to the Fifth Circuit Judicial Complaints website to-date

oh, and;

Lets not forget the Burke v. Ocwen Fifth Circuit Appeal, fully briefed (19-20267) and by all inferences, stayed [yet this court denied the Burkes motions to stay] while the CFPB’s unconstitutional status is pinged about the US Supreme Court.

– failed to “start formal perjury, contempt or other disciplinary action” based on the Burkes’ objection that defendant Mark Hopkins, an attorney, “twice pos[ed] premeditated lies” about them during a September 10, 2019 status conference before United States Magistrate Judge Peter J. Bray;

– took no action on their objection that to cover-up his improper and prejudicial conduct during the conference, Magistrate Judge Bray “doctored” the transcript and audio-recording and “significantly delayed” providing the Burkes with copies of those records;2 and,

The Burkes objected (Doc.66) to Brays’ premature Memorandum and Recommendation (“M&R”)[12]. It is date-stamped 9th March by S.D. Tex.

The notice of this filing is 3 days later, on 12th PACER, however, is backdated to the 9th. Courtlistener.com shows March 12th,[13] in agreement with the Burkes email notice.

There was ‘no good reason’ for this delay or back-dating, just as there was ‘no good reason’ for the lengthy delay in the Burkes receiving the doctored transcript/audio of the Sept., 10, 2019 conference (See Doc. 66).

braycriminal

See the Breyer Report; A-4   FAILURE TO INVESTIGATE ADEQUATELY A COMPLAINT THAT A JUDGE ORDERED A TRANSCRIPT ALTERED p.48-49 (Standard 5).

– canceled a scheduled March 19, 2020 status conference on March 17, and “sordidly exploited and abused his authority as a Judge for malicious and vindictive reasons” by entering final judgment. in favor of the defendants on March 18, thereby “intentionally depriv[ing] [us] of [our] right to a fair hearing.”

The Burkes submit that Judge Hittner’s “uncivilized and unlawful” conduct “can only be described as heinous when targeted towards sick, disabled and elderly citizens before the court and in defiance of a pandemic.”

Extract: “Due to Hittner’s bias[19], he (1) deprived the Burkes of their constitutional rights to a fair hearing (due process) which was scheduled for 3/19/2020 and which was 5 days after Gov. Abbott declared the State a disaster. It is clearly a violation of civil and human rights as to its premeditated timing, e.g. a pandemic.[20]”

To the extent that these allegations relate directly to the merits of decisions or procedural rulings, they are subject to dismissal under 28 U.S.C. § 352(b)(l)(A)(ii).

“Today’s concept of judicial integrity turns out to be “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” 12 The Works of Thomas Jefferson 137 (P. Ford ed. 1905).” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1677 (2015)

The Judicial Conference of the United States directed the various Circuit Judicial Councils to continue implementation of the recommendations of the Judicial Conduct and Disability Act Study Committee, which was chaired by Justice Stephen Breyer by,

1) encouraging the courts in their respective circuits to create committees of local lawyers to serve as intermediaries between individual lawyers and the formal complaint process;

2) requiring all courts covered by the Judicial Conduct and Disability Act to provide information about filing a complaint on the homepage of the court website and take other steps to publicize the Act; and

3) ensuring the submission of timely and accurate statistical information about complaint filing and terminations. This summer the Judicial Conference’s Committee on Judicial Conduct and Disability released its draft Rules Governing Judicial Conduct and Disability Proceedings for 90 days of public comment to conclude October 15, 2007.

The Committee also will hold a public hearing regarding the draft rules on September 27, 2007, at the U.S. Courthouse in Brooklyn.

In other respects, any assertions of “willful misconduct” or bias appear entirely derivative of the merits-related charges, but to the extent the allegations are separate, they are wholly unsupported, and are therefore subject to dismissal under 28 U.S.C. § 352(b)(l)(A)(iii) as “lacking sufficient evidence to raise an inference that misconduct has occurred.”

The Judicial Conduct and Disability Act (1980) (“the Act”) authorizes any person to file a complaint alleging that a federal judge has engaged in conduct “prejudicial to the effective and expeditious administration of the business of the courts.”

Judicial misconduct proceedings are not a substitute for the normal appellate review process, nor may they be used to obtain reversal of a decision or a new trial.

 When a state deprives a person of liberty or property through a hearing held under statutes and circumstances which necessarily interfere with the course of justice, it deprives him of liberty and property without due process of law. Moore v. Dempsey, 261 U.S. 86; Frank v. Mangum, 237 US 309. – Tumey v. Ohio, 273 US 510, 511 (1927).

This is the Burkes’ third merits-related and conclusory judicial misconduct complaint.

See the Breyer report, “that the judge ruled against the complainant…because the judge doesn’t like the complainant personally, is not merits-related.” p.54.

The Burkes are WARNED that should they, together or separately, file a further merits-related, conclusory, frivolous, or repetitive complaint, their right to file complaints may be suspended and, unless they are able to show cause why they should not be barred from filing future complaints, the suspension will continue indefinitely.

10. ABUSE OF COMPLAINT PROCEDURE

(a) Abusive Complaints. A complainant who has filed repetitive, harassing, or frivolous complaints, or has otherwise abused the complaint procedure, may be restricted from filing further complaints.

After giving the complainant an opportunity to show cause in writing why his or her right to file further complaints should not be limited, the judicial council may prohibit, restrict, or impose conditions on the complainant’s use of the complaint procedure.

Upon written request of the complainant, the judicial council may revise or withdraw any prohibition, restriction, or condition previously imposed.

(b) Orchestrated Complaints. When many essentially identical complaints from different complainants are received and appear to be part of an orchestrated campaign, the chief judge may recommend that the judicial council issue a written order instructing the circuit clerk to accept only a certain number of such complaints for filing and to refuse to accept additional complaints. The circuit clerk must send a copy of any such order to anyone whose complaint was not accepted.

COMMENTARY ON RULE 10

This Rule is adapted from the Illustrative Rules.

Rule 10(a) provides a mechanism for a judicial council to restrict the filing of further complaints by a single complainant who has abused the complaint procedure.

In some instances, however, the complaint procedure may be abused in a manner for which the remedy provided in Rule 10(a) may not be appropriate.

For example, some circuits have been inundated with submissions of dozens or hundreds of essentially identical complaints against the same judge or judges, all submitted by different complainants. In many of these instances, persons with grievances against a particular judge or judges used the Internet or other technology to orchestrate mass complaint-filing campaigns against them.

If each complaint submitted as part of such a campaign were accepted for filing and processed according to these Rules, there would be a serious drain on court resources without any benefit to the adjudication of the underlying merits.

A judicial council may, therefore, respond to such mass filings under Rule 10(b) by declining to accept repetitive complaints for filing, regardless of the fact that the complaints are nominally submitted by different complainants.

When the first complaint or complaints have been dismissed on the merits, and when further, essentially identical submissions follow, the judicial council may issue a second order noting that these are identical or repetitive complaints, directing the circuit clerk not to accept these complaints or any further such complaints for filing, and directing the clerk to send each putative complainant copies of both orders.

See Rule IO(a), Rules for Judicial-Conduct and Judicial-Disability Proceedings.

See the Breyer Report A-6 FAILURE TO INQUIRE ABOUT CLAIMS OF A JUDGE’S BIAS TOWARD A LITIGANT, p. 50 (Standard 3).

The complaint is DISMISSED.

Priscilla R. Owen
Chief United States Circuit Judge
November 8, 2020

Most notably, Article III judges cannot delegate to magistrate judges final authority over some important issue in a case, as only Article III judges, not their adjuncts, have the power to dispose of cases or controversies.

For this reason, the Supreme Court has stressed that the reviewability of a magistrate judge’s actions is a critical factor in considering the propriety of an Article III judge’s delegation of authority to a magistrate judge. See Peretz, 501 U.S. at 937-39111 S. Ct. at 2669-71.

Even if a “`controversial matter might be delegated to a magistrate,'” so long as the district court has the power to review the magistrate judge’s actions, there is no “`threat to the judicial power or the independence of judicial decisionmaking that underlies Article III.'” Peretz, 501 U.S. at 938, 111 S. Ct. at 2670 (quoting United States v. Raddatz, 447 U.S. 667, 685-86, 100 S. Ct. 2406, 2417-18, 65 L. Ed. 2d 424 (1980) (Blackmun, J., concurring)).

Only when a magistrate judge possesses final decisionmaking authority over a substantial issue in a case does an Article III problem arise. See Raddatz, 447 U.S. at 683100 S. Ct. at 2416.

United States v. Dees, 125 F.3d 261, 268 (5th Cir. 1997)

Summary: H.R.3892 — 107th Congress (2001-2002)All Information (Except Text)

 Bill summaries are authored by CRS.

Shown Here:
Reported to Senate with amendment(s) (07/31/2002)

Judicial Improvements Act of 2002 – Amends the Federal judicial code to authorize any person alleging that a circuit, district, bankruptcy, or magistrate judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or is unable to discharge all the duties of office by reason of mental or physical disability, to file a written complaint with the clerk of the court of appeals for the circuit.

Directs the chief judge to expeditiously review such complaints. Authorizes the chief judge:

(1) to conduct a limited inquiry to determine whether the facts are untrue or incapable of being established through investigation (in which case the chief judge may order the complaint to be dismissed) and whether appropriate corrective action has been or can be taken without a formal investigation (in which case the chief judge may order proceedings to be concluded); and

(2) if he or she does not enter such an order, to form a special committee to investigate the allegations and report findings and recommended action to the judicial council.

Authorizes the judicial council to:

(1) conduct additional investigation and either dismiss the complaint or take appropriate action, including ordering assignment of no further cases to the judge, privately or publicly reprimanding or censuring the judge, certifying disability of the judge, or requesting that the judge voluntarily retire; or

(2) refer the complaint to the Judicial Conference of the United States.

Directs the Judicial Conference:

(1) to take the actions authorized for the judicial council; or

(2) if it finds that impeachment may be warranted, to certify and transmit the determination and record of proceedings to the House of Representatives for whatever action the House considers to be necessary.

Sets forth provisions regarding subpoena power, petitions by aggrieved complainants or judges for review of orders and actions, and rules for the conduct of proceedings.

Bars any judge whose conduct is the subject of an investigation under this Act from serving upon a special committee, judicial council, Judicial Conference, or standing committee until all related proceedings of the investigation are complete.

Makes all papers, documents, and records of an investigation confidential and not subject to disclosure, except to the extent that:

(1) a judicial council elects to release a report developed by a special committee to the complainant and the affected judge;

(2) the judicial council, Judicial Conference, or the Senate or House of Representatives by resolution releases information related to an impeachment investigation; or

(3) the affected judge and either the chief judge of the circuit, the Chief Justice, or the chairman of a standing committee authorize in writing their joint desire to disclose information.

Directs that each written order to implement any action issued by a judicial council, Judicial Conference, or standing committee be made available to the appropriate clerk of court’s office, accompanied by written reasons explaining the decision (unless contrary to the interests of justice).

Authorizes an affected judge to request that he or she be reimbursed through the Administrative Office of the U.S. Courts for reasonable expenses incurred in the course of an investigation when a complaint is dismissed.

Directs the Court of Federal Claims, Court of International Trade, and Court of Appeals for the Federal Circuit to establish procedures for the filing of complaints regarding the conduct of any judge of such court and for the investigation and resolution of complaints.

Grants each of these courts the same powers granted to judicial councils under this Act.

Prohibits a judge of such court who is convicted of a State or Federal felony and who has exhausted all means of direct review of the conviction (or for whom the time for obtaining such review has passed) from hearing or deciding cases unless the relevant court determines otherwise.

Bars the inclusion of any service as such judge, after the conviction is final and all time for filing appeals thereof has expired, for purposes of determining years of service or creditable service.

Re: Judicial Misconduct Complaint No. 05-20-90128

Joanna Burke
10:45 AM December 16, 2020
to Shelley, CA5

Dear Ms Saltzman,

In the courts letter dated 10th Nov. with attachments, namely the court order dated 8th Nov, page 3, it stated in the conclusion of the dismissal the following;

“This is the Burkes’ third merits-related and conclusory judicial misconduct complaint.”

We would kindly ask if you could forward a copy of the first ‘merits’ based complaint and subsequent dismissal order by this court.

Thanking you in advance for your earliest response.

Stay safe.

Regards

Joanna Burke
email; kajongwe@gmail.com

From: Shelley Saltzman <Shelley_Saltzman@ca5.uscourts.gov>
Date: Wed, Dec 16, 2020 at 1:06 PM
Subject: RE: Judicial Misconduct Complaint No. 05-20-90128
To: Joanna Burke <kajongwe@gmail.com>

Dear Mrs. and Mr. Burke:

Please find attached a copy of the dismissal order regarding your 2011 complaint against United States District Judge Lynn N. Hughes [Complaint No. 05-11-90087].

I’m unable to send you a copy of the complaint at this time because we did not scan complaint documents back in 2011 and, due to COVID-19 restrictions, I am working remotely and do not have access to paper file.

I expect to go into the courthouse sometime next week to process outgoing mail, and I will scan the 2011 complaint and email a copy to you.

Of course, if you need a copy of the 2011 complaint as part of your preparation of a petition for review in Complaint No. 05-20-90128, please don’t hesitate to send me an email request for an extension of the December 22, 2020 petition filing deadline.

Yours sincerely,

Shelley E. Saltzman
Legal Analyst
Circuit Mediation and Judicial Support Office
US Court of Appeals for the Fifth Circuit

U.S. Department of Justice
Office of Justice Programs
Bureau of Justice Assistance

Protecting Judicial Officials:

Implementing an Effective Threat Management Process

Overview

A successful threat management process consists of 10 basic elements, each integral to all the others. They compose the golden rules of contemporary threat management and demonstrate how the judiciary can identify, assess, investigate, and manage risks of violence to judicial officials. Following these 10 rules will allow the judicial threat manager to implement an effective threat management process.

10 Golden Rules for Effective Threat Management

Rule 1.

Recognize the Need for a Threat Management Process

Rule 2.

Assign Responsibility of Managing Cases to Trained Threat Managers

Rule 3.

Provide Training for and Establish Liaison With Protectees and Court Staff

Rule 4.

Create an Incident Tracking System With Well­ Documented Files

Rule 5.

Establish Liaison With Other Agencies

Rule 6.

Use Consistent and Valid Threat Assessment Methods

Rule 7.

Conduct Thorough Fact Finding

Rule 8.

Apply Threat Management Strategies Flexibly and Intelligently

Rule 9.

Communicate With Protectees in a Professional, Confident, and Competent Manner

Rule 10.

Manage Cases Appropriately

Rule 1. Recognize the Need for a Threat Management Process

Courts resolve disputes. They provide a neutral arena for judging emotionally charged controversies.

Disputants bring their quarrels before the bench. Each wants his or her claim sustained, each requests vindication. Most who stand before the court ultimately accept the court’s rulings, however adverse to their own interests. But some will not and only care for the result that most benefits them. When these individuals’ views clash with the court’s decision, violence may result.

Why do courts need threat management programs?

Because angry individuals, once denied their own sense of justice, may turn to violence for exoneration, vengeance, or even salvation.

They may direct their anger, revenge, and fears at the officials who personify the judicial process: the judges, prosecutors, clerks, and others who work within the system.

So it is no coincidence when these attacks occur at the courthouse, as the building itself symbolizes both dispensed and desired justice.

Without a competent threat management process to identify, assess, and manage potential threats, the justice system risks missing any opportunity to intervene and defuse the situation.

In addition, the number of these disgruntled individuals appears to be growing.

Reports at the federal level show a steady increase throughout the 1990s in inappropriate communications or contacts (IC&Cs) directed toward federal jurists.

The number of IC&Cs reported to the U.S. Marshals Service rose from a couple of hundred a year in the early 1990s to more than 700 in 2004.

Since 1979, three federal judges have been killed. In March 2005, a former claimant and suspect confessed to killing a federal judge’s husband and mother. Prior to 1979, only one federal judge was killed.1

Clearly, a ground shift occurred that resulted in a significant increase in the risk to federal judicial officials.

No comparable national data have yet been compiled on the risks to state and local judicial officials.

Informal research by the National Sheriffs’ Association (NSA) suggests that during the past 35 years, eight state or local judges have been killed.

Another 13 were physically assaulted.

Three local prosecutors were killed, four assaulted.

At least 5 law enforcement officers have been killed at local courthouses, 27 assaulted. At least 42 court participants have been killed at local courthouses and 53 assaulted.

In March 2005, a Fulton County, Georgia, jail prisoner delayed his escape long enough to seek out the judge presiding at his trial. After overpowering a deputy sheriff, he killed the judge and a court reporter in the courtroom, then killed another deputy sheriff outside the courthouse.

MARK DANIEL HOPKINS CONDUCT IS NOT ONLY UNBECOMING, IT’S CRIMINAL

Magistrate Peter Bray, a former public defender, stood before Judge David Hittner in the lower court and defended a man, Yarbrough, who had threatened to harm the judge.[38] Yarbrough was sentenced to several years in jail.

In this case, as a Magistrate Judge, Peter Bray watched and listened to Mark Hopkins admitted lies, wherein he stated  in open court the Burkes “wanted certain judges to be shot”, repeated the same statement again and for a third time said ‘and suggesting some members of the judicial should be shot”. MH ended his lies with; “[he] wanted this to end sooner than later”. That’s 3 separate times Hopkins made outrageous claims and admitted lies in succession.

The evil intent by Mark Hopkins was spine-chilling [ROA.1052].

Risks to State and Local Judicial Officials: The Past 35 Years

8 state or local judges have been killed.

13 state or local judges have been physically assaulted.

3 local prosecutors have been killed.

4 local prosecutors have been assaulted.

5, if not more, law enforcement officers have been killed at local courthouses.

27 law enforcement officers have been assaulted at local courthouses.

42 court participants have been killed at local courthouses.

53 court participants have been assaulted at local courthouses.

A 1999 survey of 1,029 Pennsylvania state judges found that 51.8 percent reported being the target ofan IC&C sometime during the previous year.

In addition, more than 25 percent of the 1,029 state judges were physically approached, 1.2 percent were assaulted, and—more disturbing—more than one ­third admitted that they had changed their judicial conduct as a result of the experience.

Judges compelled to change their judicial conduct may sacrifice justice for security.

The risk extends beyond the individual jurists and goes directly to the ability of government at the state, local, or federal levels to ensure justice to its citizenry.

Attacks on the judiciary are assaults on the system of justice—one of the most crucial elements  of democratic self ­government.

1 Calhoun, Frederick S. 1998. Hunters and Howlers: Threats and Violence Against Federal Judicial Officials in the United States, 1789–1993. Arlington, VA: U.S. Department of Justice, U.S. Marshals Service.

Rule 2. Assign Responsibility of Managing Cases to Trained Threat Managers

Establishing a threat assessment process must be emphasized, rather than a threat management unit or program, because a specific composition or quantity of resources should be determined locally. Depending on the size of the court, potential number of IC&Cs that might be reported, and number of cases that might be opened, the threat management process can be handled by a fully staffed unit of threat managers or by one person as a part­time collateral responsibility. Workload should be the principal criterion for determining the number of personnel and resources dedicated to the process.

Whatever the size or composition, whoever is assigned threat management responsibilities should be trained, and the training should be refreshed periodically. A number of organizations provide threat management training, and there is a growing library of research, articles, and books on contemporary threat management that can be accessed to better prepare staff. In addition, agencies and organizations, including the Office of Justice Programs’ Bureau of Justice Assistance, are reexamining concepts such as “secure by design” to determine their role in this crime prevention arena.

Rule 3. Provide Training for and Establish Liaison With Protectees and Court Staff

The next step in establishing an effective threat management process is to train court staff in what to report and how to report IC&Cs. Training staff helps the threat manager obtain the initial facts, unembellished by exaggeration or worry, as quickly as possible. Although key staff like judges, prosecutors, and chief clerks should be well trained, the majority of reports the threat manager will receive will come from receptionists, mail handlers, perimeter security officers, parking lot attendants, telephone operators,

cafeteria staff, and the newsstand operator. These are the people who deal most with the public.  They  are more likely to see, hear, or  receive  any  IC&Cs, no matter who is targeted. Training them on what information to report and how to report it will ensure that the threat manager gets reports on IC&Cs in a timely and accurate manner.

Rule 4. Create an Incident Tracking System With Well­ Documented Files

Controlling the flow of information requires information management. Depending on workload, managing the information may require something as simple as an index card system or as sophisticated as a computer database. The system needs to be designed to  retrieve information quickly and efficiently. It should include not only demographics on the subject, but also key words used by or topics of known interest to the subject. The latter may prove crucial in identifying anonymous subjects. At a minimum, the following variables should be captured for each IC&C:

Case synopsis.

Case specifics.

How the IC&C was delivered.

Content of and exact quotes from the IC&C.

Suspect’s demographics.

Target’s demographics.

Suspect’s motive, especially in relation to a court case.

With information on these variables, the threat manager can manage current cases, cross­reference previous cases, share information on contentious cases or problem individuals as a case works its way up the appellate process or across jurisdictions, and create an institutional memory for that judicial setting.

Whatever system is created, it should be designed for easy sharing with other agencies and jurisdictions, ideally as part of regional and national information­ sharing networks.

Rule 5. Establish Liaison With Other Agencies

It is absolutely vital for the threat manager to reach out beyond the courthouse to make contact with law enforcement agencies, private security firms that provide protective services, and other judicial entities. The threat manager must have information flowing from all sources, both inside and outside the courthouse, because only through information can the threat manager begin to fill in the pieces of the puzzle. Information from disparate sources can link one IC&C to another and reveal relationships, motives, past behaviors, and previous actions of the subject—in and out of court.

Rule 6. Use Consistent and Valid Threat Assessment Methods

After receiving the initial IC&C report and gathering as many facts as are immediately available, the threat manager must next make an initial assessment from which to design the immediate protective response, set a course of fact finding, and begin identifying the most appropriate threat management strategies. A number of experts have developed some facile assessment tools to help the manager think through the case. For example, there are now tools that provide a comprehensive approach when used together. Threat managers can apply each tool in every assessment, as each allows the threat manager to examine what is known from a different angle. In combination, they provide a thorough assessment of the entire situation. Employing all of these tools helps the threat manager identify what is not known, thus giving direction to the protective fact finding.

These assessment tools address four broad but related questions. In each case, the threat manager should always ask:

What are the circumstances surrounding and context of the IC&C?

What stakes are involved, from the subject’s point of view?

Each of these questions focuses on different aspects of the subject’s behaviors, motive, and intentions.

The first question simply requires the threat manager to describe the IC&C, how it was delivered, to whom it was delivered and directed, what message it says or conveys, and what may have prompted it.

The second question deals with what may be at stake in any court case involving the subject. It addresses how desperate or driven toward violence the subject feels.

The third question seeks to determine if the subject has engaged in behaviors common to attackers or assassins.

The fourth question takes the opposite tack and asks if the subject’s behaviors compare similarly to the way non-attackers behave.

2 Hunters are people who attack without threatening.

3 Howlers are people who threaten without ever attacking.

Rule 7. Conduct Thorough Fact Finding

Protective fact finding focuses on collecting facts concerning the circumstances of the IC&C and what prompted it, the subject, the target’s relation to the subject, the subject’s past behaviors, and the subject’s current behaviors. The purpose is to gather enough information and evidence to support an accurate and complete reassessment of the potential risks and the best way to defuse them. The judicial setting contains two valuable aspects, each of which offers a distinct advantage to the threat manager.

First, the target and his or her staff can be an  invaluable source of  information  about  the  subject, the subject’s issues and motive, and the subject’s demeanor under stress. For instance, because most IC&Cs to judicial officials are initiated by a court case, the target frequently  has  some  knowledge  or suspicion about the subject and knows the details  of the case. Often, court employees have observed how the subject behaved in  court.  In  addition,  court records are readily available in the clerk’s office.

Reviewing the records of the case may educate the threat manager about the issues and motivations that

assessing how desperate the subject may feel is readily available from the case files, the target, the IC&C, court staff who have dealt with the subject, and the subject’s friends and family, as well as through interviews with the subject.

Rule 8. Apply Threat Management Strategies Flexibly and Intelligently

The strategies for defusing the risk to judicial officials are best conceptualized as different options arrayed along a spectrum, where each option falls within the range that is determined by the option’s effect on the subject. The spectrum reaches from discreet, passive defensive measures at one end to intrusive, confrontational acts at the  opposite  end.  The strategies run the gamut from doing nothing that directly affects the subject to  using  the  authority  of the law to restrain the suspect. The figure below illustrates the range of threat management strategies available for defusing the risk to judicial officials.

Figure 1: Threat Management Strategies

The threat manager should consider all of the strategies, weighing the effectiveness of each given the particular and unique aspects of the case at hand. Each one has specific advantages and disadvantages, and each should be used only when certain conditions apply.

The threat manager must determine which one offers the best chance for defusing the risk in the case at hand at that particular moment.

Once a strategy has been identified and implemented, the threat manager should immediately recognize that the situation has changed precisely because a strategy has been employed.

The change requires reevaluating the case, assessment, and strategy, which may result in using other strategies.

Rule 9. Communicate With Protectees in a Professional, Confident, and Competent Manner

The threat manager should take care, by word  and deed, to reassure the target and his or her staff that  the threat manager is a  professional  problem-solver and that the responses to the incidents are under control.

In implementing the appropriate protective responses, the threat manager should never increase the protectee’s and staff’s fears  by  projecting  the wrong attitude or sharing information they might misinterpret.

Frequent updates and open lines of communication with the protectees and their staff will help the threat manager keep them calm, attentive to instructions, and willing to follow the threat manager’s lead.

Judges, counted on to “be in charge,” are frequently tempted to take charge. This should be avoided.

The threat manager should always provide some protective response every time an IC&C is reported. Protective responses range from providing a security briefing at a minimum to a full­fledged  protective detail or target relocation at the maximum.

The selection of the appropriate protective response should be directly proportioned to the assessment and findings of any protective investigation.

Always providing some level of protective response serves two purposes.

First, it enhances the protectee’s security. Even a security briefing reminds the protectee to take simple precautions and be aware of and immediately report any suspicious incidents.

Naturally, going up the scale of protective responses adds even more security. Provided that each response is in proportion to the threat assessment, the results of the protective fact finding, and the success of the threat management strategies, the threat manager will maintain a balance between needed security and limited resources.

Second, always implementing some degree of protective response sends a positive signal to the protectee. It helps underscore the threat manager’s professionalism, competence, and concern. That signal will help allay the protectee’s fears and give him or her the reassurance that everything necessary is being done.

Rule 10. Manage Cases Appropriately

Threat management cases are seldom open and shut. They begin when an IC&C, not necessarily a crime, has been directed toward a protectee. But unlike criminal cases, they have no climactic point of closing.

Even the most blatant and direct threatener can be arrested and convicted of that crime but continue threatening or, worse, plotting, from jail.

An  anonymous subject may direct an IC&C toward a judicial official, then never be heard from again.

When can either case be closed?

Neither arrest and conviction nor time’s cooling effects seem enough to support case closure.

Threat management cases are not about  investigating or solving crimes. They are about managing an individual’s behavior. Threat managers do not have a caseload of crimes assigned to them. Rather, threat managers are assigned problem individuals.

Consequently, a threat manager’s caseload is a hybrid between a criminal caseload and a parole or probation officer’s caseload.

Hence, it is recommended that threat managers avoid the terminology that has been historically used when opening or closing a threat management case.

Instead, it is preferred that cases be designated as one of the following:

Active.

Inactive.

Chronic or habitual.

Long term.

These designations are best suited for handling threat management cases.

Contemporary threat management for judicial officials seeks to avert violence altogether. The judiciary must expand its security from simply fortifying courthouses and reacting to violent attacks.

It needs to incorporate an effective threat management process for defusing the risk of violence before the violence erupts.

An effective threat management process does not infer the ability to predict violence. Instead, it entails establishing procedures to enable the threat manager to identify potential problem individuals, assess the seriousness of the risk, investigate  the circumstances, and then devise the appropriate strategies for managing the subject.

Implementing an effective threat management process requires the judiciary to follow the “10 golden rules.” Doing so will further enhance the judiciary’s security.

Bureau of Justice Assistance Information

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This document was prepared by the National Sheriffs’ Association via funding from the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice.

A GUIDE TO THE FEDERAL MAGISTRATE JUDGES SYSTEM

Peter G. McCabe

A White Paper Prepared at the Request of the Federal Bar Association

 

Hon. Michael J. Newman, United States Magistrate Judge

Chair of the Federal Bar Association’s Magistrate Judge Task Force (2013-14) President of the Federal Bar Association (2016-17)

Hon. Gustavo A. Gelpí, Jr., United States District Judge

President of the Federal Bar Association &

Creator of the FBA’s Magistrate Judge Task Force (2013-14)

August 2014

Updated October 2016

Other Matters

 On delegation from the district court or a district judge, magistrate judges may be assigned a wide range of other judicial duties in civil and criminal cases under authority of four distinct provisions of the Federal Magistrates Act. In summary, magistrate judges may –

(1) hear and determine with finality “any pretrial matter pending in the court” not dispositive of a party’s charge, claim, or defense;227

(2) hear and submit proposed findings of fact and recommended decision to a district judge on eight motions specified in the Act and any other matter that may dispose of a charge, claim, or defense, or a prisoner petition seeking post-trial relief or challenging conditions of confinement;228

226 8 U.S.C. §§ 1421, 1443-1448. If the Immigration and Naturalization Service denies an application, the applicant may ask the district court for de novo review. 8 U.S.C. § 1421(c).

227 28 U.S.C. § 636(b)(1)(a); FED. R. CIV. P. 72(a); FED. R. CRIM. P. 59(a).

228 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 73(b); FED. R. CRIM. P. 73(b).

(3) perform “such additional duties as are not inconsistent with the Constitution and laws of the United States;229 and

(4) with the consent of the parties, conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the 230

Magistrate judges have been assigned literally hundreds of different matters under these four authorities. For the most part, there is now little dispute over a magistrate judge’s authority. But there have been many court opinions discussing whether a particular matter in a particular case should have been handled by the court as a dispositive matter or non-dispositive matter, whether consent of the parties was needed, whether consent could be implied from a party’s conduct, and whether assignment of a particular matter was consistent with the Constitution and laws of the United States. If a question or dispute arises, circuit case law, which occasionally varies from circuit to circuit, must be consulted.231

Disposition of Civil Cases on Consent of the Litigants

Under the 1979 amendments to the Federal Magistrates Act, a full-time magistrate judge may conduct any civil action or proceeding, including a jury or nonjury trial, and order the entry of finaljudgment in the case if all parties in the litigation consent.232 Each district court has designated its magistrate judges to exercise this power, giving a magistrate judge authority over an entire civil case or any specified aspect of the case, such as a designated dispositive motion.

Consent Procedures

Case-dispositive proceedings before a magistrate judge are handled in the same manner as those before a district judge and must conform to the Federal Rules of Civil Procedure.233 An appeal from a judgment entered at a magistrate judge’s direction may be taken to the court of appeals as any

229 28 U.S.C. § 636(b)(3).

230 28 U.S.C. § 636(c).

231 An illuminating summary of the wide range of duties addressed in the case law is set forth in: Timothy A. Baker, The Expanding Role of Magistrate Judges in the Federal Courts, 39 VAL. U. REV. 661, 677-680 (2005). The Administrative Office monitors the case law and disseminates information memoranda and an inventory of duties to magistrate judges. See supra Section 1c, Utilization Advice to the Courts.

232 28 U.S.C. § 636(c)(1); FED. R. CIV. P. 73(a). A part-time magistrate judge may exercise the authority if the chief judge of the district court certifies that a full-time magistrate judge is not reasonably available in accordance with guidelines established by the judicial council of the circuit. 28 U.S.C. § 636(c)(1)

233 28 U.S.C. § 636(d).

other appeal from a district-court judgment.234

The clerk of the district court, at the time a civil case is filed, must notify the parties of their opportunity to consent to the dispositive authority of a magistrate judge. The parties communicate their consent by filing a statement consenting to the reference, either jointly or separately.235  The Administrative Office has issued standard national forms for the notice, consent, and reference of both an entire civil case and a dispositive motion in a civil case.236

A district judge or magistrate judge may be informed of a party’s response to the notice only if all parties have consented to the referral. A district judge, magistrate judge, or other court official may remind the parties of a magistrate judge’s availability, but must also advise them that they are free to withhold consent without adverse substantive consequences.237  A district judge, for good cause shown, or on the judge’s own motion, or under any extraordinary circumstances shown by any party, may vacate a reference of a civil matter to a magistrate judge.238

Advantages of Consent

The Magistrate Judges Committee of the Judicial Conference recommends that district courts encourage and facilitate parties’ consent to magistrate judges’ decisional authority in civil cases. It points out that when magistrate judges exercise full authority in civil cases, district judges’ time is conserved and the court can manage its civil docket more effectively.239

Consenting to a magistrate judge also offers the parties the prospect of an early, firm trial date. Magistrate judges often have more flexible trial schedules than district judges because they do not preside over felony cases, which are given priority and may bump civil trials.

234 28 U.S.C. § 636(c)(3); FED. R. CIV. P. 73(c).

235 FED. R. CIV. P. 73(b)(1).

236 AO Forms 85 and 85A.

237 FED. R. CIV. P. 73(b); 28 U.S.C. § 636(c)(2). The 1979 statute had prohibited judges from discussing consent with the parties after the clerk of court had sent the parties the original consent notice. The restriction, though, was relaxed by a 1990 statutory amendment designed both to encourage consent and protect the voluntariness of the parties’ action. Federal Courts Study Commission Implementation Act of 1990, Pub. L. No. 101-650, § 308, 104 Stat. 5104, 5112.

238 28 U.S.C. § 636(c)(4); FED. R. CIV. P. 73(b)(3).

239 SUGGESTIONS FOR UTILIZATION OF MAGISTRATE JUDGES, NO. 4. The Committee suggests that courts take steps to educate the bar about the quality, abilities, and experience of their magistrate judges and the availability and advantages of the consent option. Judges may disseminate this and other information about the consent option in pretrial conference notices, referral orders, and articles written for local legal publications, and it can highlight the consent option on its website.

The parties are also more likely to consent when a magistrate judge has already become familiar with a case because of his or her pretrial management and discovery supervision in the case. The parties may feel comfortable with the magistrate judge from that experience. A practice adopted by a growing number of district courts is to facilitate consent by including magistrate judges on the civil case assignment wheel for direct assignment of a designated number or percentage of civil cases at filing, subject to later consent by the parties to full adjudication of the case by the magistrate judge.

It is the policy of the Department of Justice to encourage the use of magistrate judges to assist the courts in resolving civil disputes. “In conformity with this policy, the attorney for the government is encouraged to accede to a referral of an entire civil action for disposition by a magistrate judge, or to consent to the designation of a magistrate judge as special master if the attorney . . . determines that such a referral or designation is in the interest of the United States,” based on several standard factors.240

Constitutional Considerations

The constitutional authority for magistrate judges to decide civil cases with finality rests on two factors:

(1) consent of the parties, who freely waive their right to an Article III judge and opt instead to have a magistrate judge dispose of their case; and

(2) the status of magistrate judges as an integral part of the Article III district courts.

The circuit courts addressing the 1979 statute held unanimously that  the consent provision was consistent with the requirements of Article III of theConstitution.241

The Supreme Court did not address the constitutional question directly, but it referred to the consent authority of magistrate judges on several occasions without apparent constitutional concern.242

Then, after more than 30 years of case law stability, the Supreme Court considered three challenges to the constitutionality of almost identical provisions in the statute defining the authority of bankruptcy judges.

240 28 C.F.R. § 52.01.

241 See cases cited in Wellness, 135 S.Ct. at 1948 n.12.

242 In Roell v. Withrow, 538 U.S. 580 (2003), for example, the Court specifically addressed 28 U.S.C. § 636(c) and held that the requisite consent to adjudication of a civil case by a magistrate judge could be implied by a party’s conduct in the litigation. 538 U.S. at 586-91. In Peretz v. United States, the Court upheld a magistrate judge’s conduct of jury voir dire proceedings at a felony criminal trial with the defendant’s consent, analogizing that “with the parties’ consent, a district judge may delegate to a magistrate supervision of entire civil and misdemeanor trials. These duties are comparable in responsibility and importance to presiding over voir dire at a felony trial.” 501 U.S. at 933.

The 1984 bankruptcy provisions were modeled closely on the 1976 and 1979 amendments to the Federal Magistrates Act.243

So the bankruptcy challenges clearly implicated the constitutional authority of magistrate judges. Like magistrate judges, bankruptcy judges are non- Article III judicial officers of the Article III district courts.

They are appointed by the respective courts of appeals for 14-year terms and serve collectively as a unit of the district court.244

Under the parallel bankruptcy statute, a bankruptcy judge may decide with finality a “core” bankruptcy proceeding245 – just as a magistrate judge may decide a non-dispositive motion in a civil or criminal case.246 On the other hand, a “non-core” proceeding is essentially an independent state-law claim “related to” the bankruptcy case that may only be determined by an Article III district judge.247

Consequently, a bankruptcy judge who hears a “non-core” proceeding in a bankruptcy case must file proposed findings of fact and conclusions of law for de novo review by a district judge248

– just as a magistrate judge must file a report and recommendations when handling a case-dispositive motion in a civil or criminal case.249

With the consent of the parties, however, a bankruptcy judge may decide a “non-core” Article III matter with finality250 – just as a magistrate judge may decide a civil case with consent.251

In 2011, the Supreme Court introduced considerable jurisdictional uncertainty when it ruled by a 5 to 4 vote in Stern v. Marshall252 that a counterclaim by the bankruptcy estate against a person filing claims against the estate – a claim that the bankruptcy statute specifically designates as a “core” bankruptcy proceeding – was a state-created common-law claim lying beyond the authority of a non-Article III judge to order final judgment. Stern dealt only with one category of “core”

243 Compare 28 U.S.C. § 157(a), (b), and (c) with 28 U.S.C. § 636(b) and (c).

244 28 U.S.C. §§ 151 and 152(a)(1).

245 Although the term is not defined, the bankruptcy statute sets out a non-exclusive list of 16 “core proceedings” that Congress thought bankruptcy judges could determine constitutionally. 28 U.S.C. § 157(b)(2). They deal with the federal bankruptcy process itself and generally address such matters as administration and liquidation of the debtor’s estate and adjustment of debtor- creditor relationships.

246 28 U.S.C. § 636(b)(1)(A).

247 Non-core proceedings, also undefined in the statute, essentially involve rights created under state law that may exist apart from the bankruptcy case, but are related to the bankruptcy case because they may augment the debtor’s estate or affect creditors’ rights.

248 28 U.S.C. § 157(c)(1).

249 28 U.S.C. § 636(b)(1)(B) and (C).

250 28 U.S.C. § 157(c)(2).

251 28 U.S.C. § 636(c).

252 564 U.S. 462 (2011).

bankruptcy claim, but it raised the strong possibility that other types of “core” proceedings regularly decided by bankruptcy judges could also be held to lie outside their constitutional authority to determine.

Of particular concern in Stern, moreover, was the “formalistic and unbending” approach and restrictive language that the majority used in interpreting Article III,253 raising the specter that the Court in future opinions might impose additional limits on the authority of both bankruptcy judges and magistrate judges. The four dissenting justices argued strongly that the majority in Stern had broken with recent, controlling precedents in which the Court had applied a pragmatic approach in evaluating claims that a particular congressional delegation of adjudicatory authority violates separation-of-power principles derived from Article III.254

In 2014, the Supreme Court considered a second case in which a bankruptcy judge had decided a statutory “core” proceeding that under Stern may be a claim reserved for a district judge to decide – a fraudulent conveyance claim. But in Executive Benefits Ins. Agency v. Arkison,255 the Court avoided the constitutional problems posed by Stern. Instead, it held narrowly that the district court in the case had cured any constitutional error because on appeal it had reviewed de novo the bankruptcy judge’s grant of summary judgment and had entered its own judgment.

The Supreme Court did not discuss the key issue of litigant consent, even though raised by the parties. Instead, the unanimous opinion prescribed a practical solution whenever a potential conflict arises between the bankruptcy statute and Article III. The Court instructed that when a bankruptcy judge is presented with a claim that the statute designates as “core,” but Article III reserves for decision by a district judge, the bankruptcy judge should treat the claim as a “non-core” proceeding and issue proposed findings of fact and conclusions of law for a district judge to review de novo and enter judgment.

In 2015, the Supreme Court finally resolved the consent issue in the third bankruptcy case,

Wellness Int’l Network, Ltd. v. Sharif.256 By a 6 to 3 vote, it took a sharp turn from the formalistic

253 See Justice Breyer’s dissent, quoting Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851 (1986). 564 U.S. at 511.

254 Id. [P]ractical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III.” Thomas v. Union Carbide Agric. Prods., Co., 473 U.S. 568, 587 (1985) (emphasis in the original). “[T]he Court has explicitly declined to adopt formalistic and unbending rules” and “weighed a number of factors . . . with an eye to the practical effect that the congressional activity will have on the constitutionally assigned role of the judiciary.” Schor, 478 U.S. at 851.

255 134 S. Ct. 2165 (2014).

256 135 S. Ct. 1932 (2015).

language of Stern and returned to the pragmatic approach of recent Court precedents, holding that bankruptcy judges may adjudicate non-core Article III claims as long as the parties knowingly and voluntarily consent.

The Court was clearly aware of the practical impact that the case would have on the magistrate judge system, as well as on the bankruptcy courts, and it included numerous references to magistrate judges in its opinion and case law analysis. It noted at the outset that –

Congress has . . . authorized the appointment of bankruptcy and magistrate judges, who do not enjoy the protection of Article III, to assist Article III courts in their work.

. . . And it is no exaggeration to say that without the distinguished services of these judicial colleagues, the work of the federal court system would grind nearly to a halt.257

The Court emphasized that consent is central to the constitutional analysis, pointing out that adjudication by consent has been a feature of the federal court system since the early  days of the republic.258

The Court relied especially on the “foundational case” of Commodity Futures Trading Comm’n v. Schor,259 reasoning that the right to adjudication before an Article III court is personal in nature and may be waived by the litigants.260

But the litigants’ waiver of their “personal right” to an Article III court, by itself, is not always determinative because Article III also serves a structural purpose that the litigants may not waive – to protect the public’s interest in the institutional integrity of the judicial branch.261

The Court explained that the lesson to be drawn from precedent is “plain.”

The entitlement to an Article III adjudicator is “a personal right” and thus ordinarily “subject to waiver.” . . . Article III also serves a structural purpose, “barring congressional attempts ‘to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating’ constitutional courts and thereby prevent[ing] ‘the encroachment or aggrandizement of one branch at the expense of the other.’” . . .

257 Id. at 1938-39.

258 Id. at 1942-44.

259 478 U.S. 833 (1986).

260 The Court also relied on Peretz, 501 U.S. at 932, which had approved a magistrate judge supervising jury voir dire proceedings in a felony criminal case because “the defendant’s consent significantly changes the constitutional analysis.” 135 S. Ct. at 1943.

261 Article III “not only preserves to litigants their interest in an impartial and independent federal adjudication of claims . . . , but also serves as ‘an inseparable element of the constitutional system of checks and balances.’ . . .” Id. (quoting Schor, 478 U.S. at 850-51).

But allowing [non-Article III] adjudicators to decide claims submitted to them by consent does not offend the separation of powers so long as Article III courts retain supervisory authority over the process.”262

Thus, the question for the Court was whether allowing non-Article III bankruptcy judges to decide Article III Stern claims by consent would “impermissibly threate[n] the institutional integrity of the Judicial Branch.”263

That question, the Court said, must be decided not by “formalistic and unbending rules,” but with an eye to the “practical effect” that the practice will have on the constitutionally assigned role of the federal judiciary.264

The Court, liberally quoting precedent, concluded that allowing bankruptcy litigants to waive the right to Article III adjudication of Stern claims does not usurp the constitutional prerogatives of Article III courts because –

Bankruptcy judges, like magistrate judges, “are appointed and subject to removal by Article III judges……………………. They “serve as judicial officers of the United States district court,” . . . and collectively “constitute a unit of the district court” for that district. . . Just as “[t]he ‘ultimate decision’ whether to invoke [a] magistrate [judge’s] assistance is made by the district court,”……………………. bankruptcy courts hear matters solely on a district court’s reference,…… which the district court may withdraw sua sponte or at the request of a party…… “[S]eparation of powers concerns are diminished” when, as here, “the decision to invoke [a non-Article III forum] is left entirely to the parties and the power of the federal judiciary to take jurisdiction” remains in place.265

The Court also emphasized the practical benefits to the judiciary of having its non-Article III judges resolve claims submitted to them by mutual consent of the litigants.

262 Id. at 1944 (citations omitted).

263 Id. (quoting Schor, 478 U.S. at 851).

264 Id.

265 The language echoes that used by the Court in Peretz and quoted earlier in the Wellness decision:

“Magistrate [judges] are appointed and subject to removal by Article III judges. The ‘ultimate decision’ whether to invoke the magistrate’s assistance is made by the district court, subject to veto by the parties. The decision whether to empanel the jury whose selection a magistrate has supervised also remains entirely with the district court. Because ‘the entire process takes place under the district court’s total control and jurisdiction,’ there is no danger that use of the magistrate [judge] involves a ‘congressional attempt “to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating” constitutional courts.”’ Id. at 1945 (quoting Peretz, 501 U.S. at 937).

Congress could choose to rest the full share of the Judiciary’s labor on the shoulders of Article III judges. Instead, Congress has supplemented the capacity of district courts through the able assistance of bankruptcy judges.

So long as those judges are subject to control by the Article III courts, their work poses no threat to the separation of powers.266

Wellness Int’l Network, Ltd. v. Sharif, thus, put to rest the uncertainty that the Stern decision had raised over the constitutionality of the consent authority of bankruptcy judges and magistrate judges.267

As a result, it is clearly appropriate for the parties in any civil case in the district court, in accordance with 28 U.S.C. § 636(c), to consent to a magistrate judge determining their case, or any part of the case, and ordering entry of final judgment.

If the parties do not consent to the dispositive authority of a magistrate judge under 28 U.S.C. 636(c), the court may still proceed under 28 U.S.C. § 636(b), which authorizes a magistrate judge to –

hear and determine with finality any “non-dispositive” matter pending before the court, e., a pretrial matter not dispositive of a party’s charge, claim, or defense;268 and

hear and submit proposed findings of fact and recommended decision to a district judge on eight “dispositive” motions specified in the statute269 and any other matter that may dispose of a charge, claim, or 270

When there is uncertainty as to whether a particular matter is in fact “dispositive” of a claim or defense, consideration should be given to the practical procedure that the Supreme Court laid out in Executive Benefits Ins. Agency v. Arkison.

It instructs bankruptcy judges to treat questionable claims as dispositive proceedings and file proposed findings of fact and conclusions of law for de novo review and entry of judgment by a district judge.

Though the advice in Arkison was directed specifically to bankruptcy judges, it appears equally apt for magistrate judges in civil cases.

 266 Id. at 1946.

267 With regard to the case-dispositive consent authority of magistrate judges, the Court added specifically that “[c]onsistent with our precedents, the Courts of Appeals have unanimously upheld the constitutionality of 28 U.S.C. § 636(c).” Id. at 1948 n.12.

268 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a).

269 A motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. 28 U.S.C. 636(b)(1)(A).

270 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b). The civil rule expands on the statutory list of 8 motions to include more broadly any “pretrial matter dispositive of a claim or defense or a prisoner petition challenging the conditions of confinement.”

Implied Consent

 In Wellness Int’l Network, Ltd. v. Sharif, the Supreme Court held that the parties’ consent must be knowing and voluntary, but it need not be express. Consent may be inferred from a party’s conduct in certain circumstances.271

In interpreting the consent provision of the bankruptcy statute, the Court relieved heavily on its 2003 holding in Roell v. Withrow,272 interpreting the parallel consent provisions in the Federal Magistrates Act. In Roell, the Court noted that 28 U.S.C. § 636(c) authorizes a magistrate judge to decide a civil case upon “the consent of the parties,” but does not specify the form of the consent.273 This unadorned language, the Court said, contrasts with other language in the Act requiring that consent to a magistrate judge be made in writing.274 Moreover, these textual clues are reinforced by a good pragmatic reason to believe that Congress intended to permit implied consent. By giving magistrate judges case-dispositive civil authority, Congress hoped to create a supplemental resource that would promote judicial efficiency, relieve the district courts’ civil workloads, and improve public access to the courts.275

In Roell, the Court acknowledged that imposing a requirement of express consent would provide a simple bright line test and minimize any risk of compromising the right to an Article III judge. But it would also open the door to sandbagging, gamesmanship and potential waste of court time and effort by undeserving and opportunistic litigants. Thus, when a party has signaled

271 “Nothing in the Constitution requires that consent to adjudication by a bankruptcy court be express. Nor does the relevant statute, 28 U.S.C. § 157, mandate express consent; it states only that a bankruptcy court must obtain ‘the consent’ – consent simplicter – ‘of all parties to the proceeding’ before hearing and determining [an Article III claim].” 135 S. Ct. at 1947.

272 538 U.S. 580 (2003).

273 The Court pointed out, however, that the procedure specified in the federal rules envisions advance, written consent. FED. R. CIV. P. 73(b)(1) specifies that the parties signify their consent by jointly or separately filing a statement consenting to the referral. In administering the consent process, the district clerks use the judiciary’s national form, sometimes with local variations – AO Form 85, Notice, Consent, and Reference of a Civil Action to a Magistrate Judge.

274 28 U.S.C. § 636(c)(1), which governs consent to disposition of a civil case by a part-time magistrate judge requires a “specific written request” by the parties, and 18 U.S.C. § 3401(b) specifies that a magistrate judge may try a [Class A] misdemeanor only if the defendant “expressly consents . . . in writing or orally on the record.”

275 538 U.S. at 588.

to a magistrate judge’s authority through “actions rather than words” –

The bright line is not worth the downside. We think the better rule is to accept implied consent where, as here, the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge. Inferring consent in these circumstances thus checks the risk of gamesmanship by depriving parties of the luxury of waiting for the outcome before denying the magistrate judge’s authority. Judicial efficiency is served; the Article III right is substantially honored.276

The Court added that the specific referral procedures prescribed in the Federal Rules of Civil Procedure are by no means just advisory. Nevertheless, the text and structure of the statute as a whole and the Congressional intent suggest that a defect in the referral to a magistrate judge does not invalidate the reference so long as the parties have in fact voluntarily consented.”277

In extending Roell to the bankruptcy courts, the Court explained in Wellness that the implied consent standard “possesses the same pragmatic virtues – increasing judicial efficiency and checking gamesmanship – that motivated our adoption of it for consent-based adjudications by magistrate judges.”278

But the Court also cautioned that –

Even though the Constitution does not require that consent be express, it is good practice for courts to seek express statements of consent or nonconsent, both to ensure irrefutably that any waiver of the right to Article III adjudication is knowing and voluntary and to limit subsequent litigation over the consent issue. Statutes or judicial rules may require express consent where the Constitution does not.279

The “good practice” advised by the Supreme Court is for courts to encourage parties to express their consent early and in writing by adhering to the procedures laid out in FED. R. CIV. P. 73 and AO Form 85.

Nevertheless, in Wellness and Roell, the Court left the door slightly ajar to additional litigation over whether a party’s consent to a magistrate judge may be implied in specific factual circumstances “through actions rather than words.” Those instances of implied consent, however, should be limited and exceptional.

276 Id. at 590.

277 Id. at 587.

278 135 S. Ct. at 1948.

279 Id. 1948 n.13.

Contempt Authority

 Magistrate judges were given contempt powers by the Federal Courts Improvement Act of 2000.280

They may exercise  summary criminal  contempt  authority to  punish  any misbehavior occurring in their presence that obstructs the administration of justice.281

This summary authority enables them to control the courtroom, maintain order, and protect the court’s dignity in response to contumacious behavior by witnesses, parties, counsel, and others present at court proceedings.

The maximum penalties that a magistrate judge may impose for criminal contempt are 30 days of incarceration and a fine of $5,000.282

Additional criminal contempt authority is provided to magistrate judges in those cases where they have final decision-making authority – civil consent cases under 28 U.S.C. § 636(c) and criminal misdemeanor cases under 18 U.S.C. § 3401. In those cases, they may punish as criminal contempt misbehavior occurring outside their presence that constitutes disobedience or resistance

to their lawful writ, process, order, rule, decree, or command.283  This authority enables them to enforce their orders and vindicate the district court’s authority over cases tried by a magistrate judge.

Disposition of contempt under this authority, though, must be conducted on notice and hearing under the Federal Rules of Criminal Procedure.

The maximum penalties that a magistrate judge may impose are the same as those for summary criminal contempt – up to 30 days of incarceration and a $5,000 fine.

Some contumacious conduct may be so egregious as to require more severe punishment. Therefore, magistrate judges may also certify the facts of a criminal contempt occurring in their presence, or outside their presence in any matter referred to them, to a district judge for further contempt proceedings.284

Magistrate judges may exercise civil contempt authority only in civil consent cases under 28 U.S.C. § 636(c) and criminal misdemeanor cases under 18 U.S.C. § 3401.

Their authority in these cases is identical to that of a district judge.285

The limited civil contempt authority, though, does not restrict limit the authority of magistrate judges to order sanctions under any other statute or provision of the federal rules.

280 Federal Courts Improvement Act of 2000, Pub. L. No. 106-518, §§ 202-203, 114 Stat. 2410 (2000).

281 28 U.S.C. § 636(e)(2).

282 28 U.S.C. § 636(e)(5).

283 28 U.S.C. § 636(e)(3).

284 28 U.S.C. § 636(e)(6).

285 28 U.S.C. § 636(e)(4).

An appeal from a magistrate judge’s contempt order in a civil consent case under 28 U.S.C. 636(c) lies to the court of appeals. An appeal of any other contempt order issued by a magistrate judge is taken to a district judge.286 The underlying principle behind the statute is that an appeal of a magistrate judge’s contempt order should be heard by the same court that hears the appeal of the final judgment in the case.

Statistics

 During the statistical year ended September 30, 2015, magistrate judges nationally disposed of 1,090,734 cases and proceedings nationally, including –

Preliminary proceedings in felony cases 349,938
Misdemeanors and petty offense cases 94,906
Civil cases on consent 16,802
Prisoner litigation 25,959
“Additional duties” in:
Civil cases 348,963
Criminal cases 192,593
Miscellaneous other proceedings 61,573
Total 1,090,734287

Conclusions

 The Federal Magistrates Act of 1968 initiated a landmark reform in the work of the federal courts by establishing a new cadre of federal judges within the district courts to assist district judges in disposing of their civil and criminal caseloads. Much of the genius of the Act lies in the great flexibility it provides to the courts. Among other things, it –

  • authorizes the federal judiciary itself to establish or discontinue magistrate judge positions when caseload demands change, without having to return to Congress for additional legislation;
  • vests the appointment of magistrate judges in the district courts themselves, rather than in the political process; and
  • provides magistrate judges with broad judicial authority, as described throughout this paper, but gives each district court discretion to decide what specific duties and proceedings to delegate to its magistrate judges, based on the court’s local needs and circumstances.

286 28 U.S.C. § 636(e)(3).

287 JUDICIAL BUSINESS 2015, supra note 56, tabl. S-17. A more detailed breakdown of the duties, including duties by district, may be found in the Judicial Business of the U.S. Courts page of the federal judiciary’s website, uscourts.gov.

The magistrate judge system has evolved greatly since enactment of the 1968 legislation. Many important and needed statutory changes were made to expand magistrate judge authority, install a strong merit-selection process, improve pay and benefits, and change the title of the office.

In addition, over the course of nearly 50 years, the federal judiciary initiated many significant internal enhancements to improve the process for evaluating, authorizing, and eliminating magistrate judge positions; inject greater rigor and diversity into the process for recruiting and appointing magistrate judges; improve and monitor all administrative aspects of the system; and control costs associated with the program,

Most importantly, the volume, range, and importance of the judicial work performed by magistrate judges has expanded greatly over the years as a result of the statutory increases in their judicial authority, prodding by the Congress for greater use of magistrate judges, promotion of greater utilization within the judiciary itself, a substantial increase in the prestige of magistrate judge positions, and favorable case law developments.

Magistrate judges today are an integral and indispensable component of the federal district courts. The great majority of districts use their magistrate judges effectively and extensively, and the remaining courts that delegate fewer duties are challenged by the judiciary on a regular basis to evaluate and expand their usage.

As the Supreme Court pointedly asserted in 2015:

“[I]t is no exaggeration to say that without the distinguished services of these judicial colleagues, the work of the federal court system would grind nearly to a halt.”288

In summary, to underscore the Supreme Court’s recent endorsement, it is fair to say that the magistrate judge system has clearly lived up to the twin objectives set by Congress in 1968 of:

(1) “reform[ing] the first echelon of the Federal judiciary into an effective component of a modern scheme of justice,” and (2) providing the district courts with an efficient supplemental judicial resource to assist in expediting their workload.289

288 135 S. Ct. at 1938-39.

289 H. R. REP. NO. 1629, 90th Cong., 2d Sess. 11 (1968) and S. REP. NO. 371, 90th Cong., 1st Sess. 9 (1967).

Note: The Fifth Circuit has far more power over bankruptcy judges and magistrate judges than district or circuit judges. The latter can only be removed if Congress impeaches and convicts them, but the Fifth Circuit can terminate bankruptcy judges for good cause.

New Executive Committee Appointments

Chief Justice John G. Roberts, Jr., appointed Judge Claire V. Eagan of the U.S. District Court for the Northern District of Oklahoma as the new chair of the Executive Committee of the Judicial Conference and appointed a new member to the committee. The new appointments were effective February 12, 2020.

Judge Eagan has served as a member of the committee since December 2018 and succeeds Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit. Judge Garland was a member of the Executive Committee since August 2013 and served as its chair since October 2017. Judge Garland’s statutorily set term as chief judge expired February 11, 2020. A circuit chief judge’s term of service on the Judicial Conference is concurrent with their term as chief judge of the circuit.

The Chief Justice also appointed Chief Judge Lavenski R. Smith of the U.S. Court of Appeals for the Eighth Circuit to the Executive Committee.

In addition to Judges Eagan and Smith, the members of the Executive Committee are chief circuit judges Jeffrey R. Howard, First Circuit; Robert A. Katzmann, Second Circuit; and Sidney R. Thomas, Ninth Circuit; district judges Robert James Conrad, Jr., Western District of North Carolina; and L. Scott Coogler, Northern District of Alabama; and James C. Duff, Director of the Administrative Office of the U.S. Courts.

The Executive Committee serves as the senior executive arm of the Judicial Conference. All members are appointed by the Chief Justice and serve open terms.

 

Related Topics: Judicial Conference of the United States

It is a central tenet of appellate jurisdiction that a party who is not aggrieved by a judgment of the district court has no standing to appeal it.”

Ward v. Santa Fe Indep. Sch. Dist.,393 F.3d 599, 603 (5th Cir.2004) (citing Matter of Sims,994 F.2d 210, 214 (5th Cir.1993)).

“Thus, a prevailing party generally may not appeal a judgment in its favor.”

Zente v. Credit Mgmt., L.P., 789 F.3d 601, 603-04 (5th Cir. 2015)

A Hunter or a Howler? Fifth Circuit Chief Judge Unlawfully Implements Threat Management Process Against Elder Victims of Judicial Misconduct
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