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Reversing the Magistrate Judge

By Jeffrey Cole

Every lawyer with a case in the federal courts will, at some point, have part of the case—often a large and critical part—decided not by a district judge but by a magistrate judge. The question is not whether you’ll be on the losing side of a decision, but what to do about it when it occurs. There are two “species” of pretrial matters that may be assigned by the district judge: those that are not dispositive of a “claim or defense of a party” and those that are. See Fed. R. Civ. P. 72(a) and (b). This article addresses appeals only of the former, but for a more detailed treatment of how to appeal either, see the expanded version in Litigation, Winter 2010, at page 8.

Federal Rule of Civil Procedure 72 and 28 U.S.C. § 636—and the substantial body of interpretive case law—require that appeals to the district judge be timely, that they be specific, that they not raise new arguments, that they comprehensively spell out the issues, and that they consist of carefully reasoned and supported argument. Adherence to these simple rules and to the basic principles of brief writing will enhance immeasurably your chances of a successful appeal from a decision of a magistrate judge.

Under Rule 72(a), the objections to the order must be in writing, and they must be served and filed within 14 days after you are served with a copy of the order, as computed under Rule 6 of the Federal Rules of Civil Procedure. The 14-day rule is not jurisdictional, and non-compliance may be excused in the interests of justice. But don’t place too much faith in the district judge’s permissiveness. In this, as in so many other contexts, it is well to recall Shakespeare’s classic admonition, “Defer no time, delays have dangerous ends.” The First Part of King Henry the Sixth, act 3, sc. 2, 1.33 (1592).

Whether to appeal a particular ruling is often a difficult question, and there is no easy or algorithmic answer. Here are some of the factors to be considered in making the decision.

First, has the case been referred for general discovery supervision and for the resolution of all non-dispositive pre-trial motions? If so, you may be spending years with the magistrate judge. Constant appeals from his or her orders will do little to advance your standing in the case—either with the magistrate or the district judge. I do not mean for a moment to suggest that the decision should be guided by considerations of appeasement or concerns about ruffling anyone’s feathers. My point, rather, is that over time, mistakes are inevitable but may not be of sufficient importance to warrant an appeal.

Indiscriminately appealing virtually every decision is imprudent and ultimately may affect your credibility with both the magistrate and district judges. It most assuredly undercuts the very purpose of, and the efficiencies sought to be achieved by, the magistrate judge system, which was to provide assistance to district judges faced with ever-expanding dockets. In short, you must be selective in picking your fights.

But don’t forget that a failure to appeal a magistrate judge’s ruling on a non-dispositive matter to the district judge may preclude raising the point in the court of appeals following an appeal from a final judgment. The waiver rule in this context is neither jurisdictional nor inflexible, but if the matter decided adversely to you could play a role on appeal in the event you lose the case in the trial court, don’t hesitate to seek review of the magistrate judge’s decision by the district judge.

Keep in mind the relaxed standard of review Congress has imposed. A district judge may modify or set aside an order only if it is “clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). In its statutory phrasing, the standard doesn’t sound particularly daunting. But don’t be fooled. A number of courts have said that a ruling can be shown to be clearly erroneous only when it can be concluded that the challenged decision is not “just maybe or probably wrong; it must strike us with the force of a five-week-old, unrefrigerated dead fish.” TFWS, Inc. v. Franchot, 572 F.3d 186, 194 (4th Cir. 2009).

Your brief should forthrightly acknowledge the deferential standard of review, rather than arguing as though it did not exist and that the district court was free to do as it pleased. The ostrich approach doesn’t work and simply leaves the brief unfocused and inevitably wrong. The district judge knows the standard of review, and you can be sure your opponent will not only point it out but also point out that your brief tellingly ignores it.

Second, spell out with specificity the error alleged to have been made and support it with comprehensive arguments and legal authority. The tone of the brief to the district court is all-important. It should be respectful, impersonal, non-accusatory, and directed solely to the merits of the order being appealed: A mistake has been made that needs to be corrected; nothing more. Most judges detest what they perceive as the “growing incivility among contending lawyers which mars our justice system and harms clients and the public interest.” Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996).

Given this judicial aversion to fractiousness, your brief to the district judge should sedulously avoid any personal attack on your adversary—Justice Antonin Scalia prefers the term “colleague” because he believes it promotes collegiality. Thus, your brief should avoid descriptions of your opponent or his positions as deceptive, deceitful, disingenuous, or despicable. And these are only some of the “d” words. Other descriptive adjectives to be avoided are outrageous, contemptible, reprehensible, and unconscionable. The list is endless. This does not mean that your brief must be antiseptic and cannot point out that a position is frivolous or unsupported or based on a distortion of the record or that the cases don’t begin to support the principles for which they’re cited. Of course, it can and should. It’s all in the phrasing and presentation. Let the facts and the legal principles speak for themselves. Caustic conclusions and ad hominem characterizations detract rather than add to the presentation. Most judges are pretty smart and get the point.

For example, suppose your opponent relies on a citation from a case that is inexact because it excludes a critical portion of the text through the use of ellipses—or worse, without even signifying that the quote is incomplete. Of course, the gambit ought not go unchallenged. There are two ways to deal with the problem. One way is to point out the omission and attack your opponent for his dishonest and unscrupulous presentation. But the more effective way is to point out the incompleteness of the quotation and set forth the excised portion. If you are inclined to go further, don’t resort to an ad hominem attack. Instead, find a case—and there is a case to fit every occasion—that has commented on the particular conduct in your case and quote the words of the case. For example, you could talk about how “[s]trategic omissions do not” change the real meaning of clauses or phrases, Swanson v. Bank of America, N.A., 563 F.3d 634, 636 (7th Cir. 2009), or how courts have frowned on incomplete quotations. See e.g., May Dep’t Stores Co. v. Fed. Ins. Co., 305 F.3d 597, 599 (7th Cir. 2002); United States v. Johnson, 187 F.3d 1129, 1132 (9th Cir. 1999). The judge will get the point, and you will not have deviated from high professional standards.

If the appeal is worth taking, the brief is worth doing right. Normally, the first line of authority is the Supreme Court. But because it decides very few cases involving the kinds of matters that come before magistrate judges, in most cases the first place to look for pertinent authority is in your own court of appeals. The second most persuasive source of authority is to be found in the decisions by the district judge to whom the appeal is directed. This should be so obvious as to make mention of it superfluous. Yet, seldom does one see cases cited to a judge that were decided by that judge. Indeed, seldom does one see relevant cases from the circuit court of appeals within which the district judge sits. Instead, there is a seemingly random selection of cases, without regard to their age or factual similarity to the issue at hand.

Spend the time necessary to prepare a brief that comprehensively presents the issue being appealed, acknowledges the appropriate standard of review, sets forth the relevant historical facts and background of the litigation, and marshals current and meaningful authority in a persuasive manner. Carefully explain not merely that there is an alternative view of the issue, but also why the magistrate judge’s ruling was clearly erroneous or contrary to law.

A likely way to undermine your own efforts to reverse a magistrate judge’s decision is to submit a brief that does not point the court to the specific place in the record where facts supporting the argument—or refuting the opponent’s argument—can be found. The courts of appeals are continually reminding the bar that judges are not like pigs hunting for truffles buried in briefs or in the record. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Specify the pages you rely on.

Finally, 28 U.S.C. § 636(c)(4) and Federal Rule of Civil Procedure 73(b)(3), authorize the district judge, for good cause shown, or on the judge’s own motion, or under any extraordinary circumstances shown by any party, to vacate a reference of a civil matter to a magistrate judge. Although not a mechanism for an appeal as such, this seldom-used section can wrest a case from the hands of a magistrate judge. Obviously, resort should be had to it only under the most compelling of circumstances.

Keywords: Litigation, tips, magistrate judge, reversal

Jeffrey Cole is a U.S. magistrate judge in Chicago and is a former Editor-in-Chief of Litigation. He is currently a Senior Editor of Litigation.

This article was adapted from a longer one that was published in the Winter 2010 issue of Litigation.


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