Mathews v. Weber – Oral Argument – November 04, 1975

Media for Mathews v. Weber

Audio Transcription for Opinion Announcement – January 14, 1976 in Mathews v. Weber

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Warren E. Burger:

We will hear arguments next in 74-850, Mathews against Weber.

Mr. Kimmel you may proceed.

Michael Kimmel:

Mr. Chief Justice and may it please the Court.

This case presents the question whether the Federal Magistrates Act authorizes District Courts to refer all social security cases to United States Magistrates for review and recommendation of its decision on the merits.

At issue is General Order No. 104-D of the Central District of California.

This District Court Rule requires all social security cases and many other federal cases to be referred to a magistrate for recommendation of a decision on the merits.

In regard to social security cases, the rule requires the magistrate to review the administrative record, receive briefs, hear argument and submit a proposed decision to the District Judge together with the proposed opinion.

The Judge may adopt or reject the proposed decision taking whatever final action he deems appropriate.

This specific case arose out of a social security claim by respondent Weber under the Medicare provisions of the Social Security Act.

The secretary denied the claim and Weber sought judicial review in the District Court.

The District Court clerk referred the action to a magistrate under General Order No. 104-D.

The Government’s motion to vacate the reference was denied by the District Judge, but on the Government’s motion, he certified his order for interlocutory appeal to the Ninth Circuit.

The Ninth Circuit upheld the reference and General Order No. 104-D as within the authority of the Magistrates Act.

This Court granted the Government’s petition for certiorari.

The respondent Weber does not take position on the Magistrate referral question, but the Ninth Circuit judge and he is being supported in this Court by the amicus.

The issue before this Court is whether General Order No. 104-D is authorized by the Magistrates Act.

In other words, does the Magistrates Act permit or should have been construed to permit the referral by District Courts of all social security cases to Magistrates for a recommended decision on the merits.

This issue is important not only to the judicial review of social security cases, but to judicial administration generally.

If the Ninth Circuit decision is upheld by this Court, not only social security cases, but any case on the administrative record and perhaps all cases on motions for summary judgment or other dispositive motion could be referred to a Magistrate for recommendation of a decision on the merits under the authority of Magistrates Act.

The Government’s position in this case in brief is that recommendatory procedure for deciding the merits of civil cases established by General Order No. 104-D was not authorized or intended by Congress when it enacted the 1968 Magistrates Act.

We will show from the legislative history that the purpose of the Magistrates Act, the reason why Magistrates were created was to relieve judges of minor or ancillary functions, so that the judges would have more time for the careful performance of their adjudicatory duties.

Our main point is that Congress intended in this Act to give a Magistrates limited or ancillary duties, not a central rule in the adjudication of civil cases.

On this basis, the Government will urge that dispositive motions in civil cases should generally not be referred to Magistrates, but that non-dispositive motions may be.

Initially, we wished to note that we share the judiciary’s concern with the tremendous case vote on District Courts created by just the number of cases that are filed every year, including social security cases.

Our position is not that Congress cannot deal more effectively with this problem by statute, including the sound use of Magistrates.

Congress could enact a statute which in terms would authorize Magistrates to review and recommend the decision in social security cases or dispositive motions generally.

Our position is simply that Congress did not authorize such an important and far reaching judicial procedure when it enacted the 1968 Magistrates Act.

Harry A. Blackmun:

Then you are raising your constitutional issue?

Michael Kimmel:

That is correct your Honor.

Harry A. Blackmun:

And it made me a little bit — I am interested is why is the Government so concerned about this?

Harry A. Blackmun:

Is it fearful that there will be more adverse decisions in social security cases coming out of the Magistrates pen or –?

Michael Kimmel:

No.

Mr. Justice Blackmun, it is not.

I do not believe because of the actual decision at least on the basis of the experience we had so far under these types of rules, it is rather that we feel that the procedure is not authorized by the Act.

That if Congress wants this kind of procedure it should enact a statute which would authorize it.

It is more a question of whether it is legal rather than a specific interest on how the cases are decided.

Harry A. Blackmun:

The Government’s interest is entirely pure rather –?

Michael Kimmel:

That could be one way of putting it, yes, Your Honor.

We —

Harry A. Blackmun:

What is other one?[Laughter]

Michael Kimmel:

That the statutes should be complied with by District Courts basically.

Our reason for a limited —

Harry A. Blackmun:

I know, but I gather the question would be — can we just — just as a purest idea on the part of the Secretary?

Michael Kimmel:

Well, perhaps in the future —

Harry A. Blackmun:

(Inaudible)

Michael Kimmel:

I think that there may be a possibility if the practice grows.

If this particular practice grows, there may be a question of whether certain judgments of District Courts are authorized if they were in effect made by magistrates.

That is not our primary concern.

That is a possible concern.

It is been raised in some cases that —

Warren E. Burger:

Let us assume that the Department of Justice has a certain minimal interest at least in finality and that if the procedure is not authorized, then there maybe some doubts at some stage raised about the finality of the determination?

Michael Kimmel:

There would be a question about — a question of the validity of judgments which are obtained under this type of procedure.

We do not think that any ruling of the practices unauthorized though should result in a retrospective decision.

We think it should be clarified at the earliest possible time what does a magistrates Act means in this regard?

Now, our reasons for a limited construction of magistrates Acts are necessarily based on the language, legislative history and purpose of Magistrates Act.

Now, in terms of some perspective I would like to point out that the major purpose of the Magistrates Act was to invest magistrates with specific and limited duties in the criminal area.

Under Section 636 (a) of the Act in the Federal Rules of Criminal Procedure, magistrates are authorized among other things to conduct preliminary hearings in criminal cases, issue search and arrest warrants and pose conditions are released and exercise jurisdiction over minor criminal offenses.

The legislative history of the Act deals primarily with the functions of magistrates in the criminal area and statistics of the administrative office show that of 255,000 matters disposed off by magistrates in the last fiscal year, over 85% were in the criminal area.

The remaining 15% of matters disposed of by magistrates were in the civil area and were composed of chiefly of handling of pretrial conferences and prisoner petitions.

These numbered 17,000 and 8,000 respectively in the last fiscal year.

Harry A. Blackmun:

Mr. Kimmel, I am going to interrupt you again.

The amicus refers to pending legislation.

Do you know what the status is of S 1283 and any related Bills is?

Michael Kimmel:

yes sir, Mr. Justice Blackmun.

S 1283 is presently under consideration by the Senate Judiciary Committee.

It was reported fairly by the subcommittee on judicial improvements.

If that Bill as reported by the subcommittee is enacted, this case would become academic, if it is enacted because it would specifically authorize dispositive motions to be annulled by magistrates for a recommended decision.

But a similar Bill, I understand was introduced in the House.

It was not approved as far as I know by the House Judiciary Committee and I do not know what the status of the question of the House is.

Thurgood Marshall:

Mr. Kimmel, you press yourself in this language I assume such additional duties as a mat — inconsistent with the constitution and law?

Michael Kimmel:

Yes sir.

Your Honor that was — of course that is the major issue in the case starting of that language.

636 (b) does state that District Courts may assign the Magistrates such additional duties as are not inconsistent with the constitution and laws of United States.

Now, although this particular language taken along is capable of a broad construction, we interpret it in light of its context in the legislative history and the purpose of the Act as reflecting limitations and it concerned the constitutional doubts or impediments be avoided.

Of the Senate —

Thurgood Marshall:

But it also says little later when they outline and they all said, but not restricted to, I do not see any limitation in there, it looks like wide open?

Michael Kimmel:

Well, the language itself thus say that it cannot be inconsistent with the constitution or the statutes.

Now, that itself we feel merely reflects a conscious desire by the Congress to limit it certainly to those two aspects.

Now, the Senate report explains this language — it explains of the constitutional qualification in Section 636 (b) at Senate report number 371, not in terms of an affirmative for maximal grant of power to District Courts, but in terms of a prohibition and a safeguard against potential abuse.

So we believe that the language was put in more for the purpose of safeguarding abuses rather than to extend maximal authority to District Courts.

The use of the term “in addition to such duties” rather than all duties or any duties, again suggests a limited statutory intention rather than a maximal statutory intention.

The amicus interprets 636 (b) as affirmatively authorized in maximal use of Magistrates to the full extent possible under the Constitution and statutes.

But we question whether Congress would have left any statutory limitation if it had really intended to authorize a maximal grant of authority would more likely have said, we think not withstanding any statute to the contrary, if it intended to exercise maximal power in this regard.

The context of Section 636 (b) bears out we believe a limited statutory intention.

Three examples of civil duties are mentioned in Section 636 (b) and these examples are limited in scope and nature.

Now, the examples are not exclusive.

We recognize that, but they are expressly described in the Senate report as intended to illustrate the general character of duties assignable to magistrates.

The three examples authorize reference to magistrates of special master functions under the restrictions of Rule 53, assistance to the judge in pretrial and discovery proceedings and making recommendations as to whether there should be a hearing in Habeas Corpus cases.

None of these examples authorize magistrates to exercise a central role in the adjudication of whole classes of civil cases.

Rather they authorize just limited or ancillary functions except in special master cases under the restrictions of Rule 53.

Michael Kimmel:

Going further in the legislative history, the supporters and sponsors of the Magistrates Acts explain Section 636 (b) in very limited terms at the time this measure was considered by the Congress.

One of the Bill’s supporters representative Poff stated at page 66 of House hearings, many of the duties that now occupy Federal judges are ministerial, routine and minor yet nevertheless time consuming.

The significant feature of the Magistrates Act is that it would free a federal judge from these less important procedural task and enable him to devote more time and attention to matters of substance.

William H. Rehnquist:

What is that really mean when you try to boil it down in terms of what goes on in a courtroom?

What functions of a judge are really ministerial?

Michael Kimmel:

All the procedural — I would not say ministerial I admit, but routine and not dispositive litigation be all the preliminary procedural type motions and the Housekeeping kind of thing in regard to progress of civil litigations through the courts, but not the actual decision of civil litigation.

William H. Rehnquist:

How much time do judges spend before the Magistrates Bill on the Housekeeping attention to progress of litigation to the courts?

Michael Kimmel:

Well, I believe that all procedural motions have to be decided by a District Judge completely, but the Fourth Amendment —

William H. Rehnquist:

You mean then when you say Housekeeping you mean discovery motions for a more definite statement, that type of thing?

Michael Kimmel:

Yes, Your Honor.

Actually there is a listing of the kinds of duties that would be involved here that are listed by the administrative office in the checklist of what Magistrates could do and it includes for instance general supervision of the civil calendar, including the handling of calendar cause, motions to expedite and postpone the trial of cases, conduct a preliminary and final pretrial conferences, status quos, settlement conferences, preparation of pretrial orders.

William H. Rehnquist:

My question was basically a response to your quotation of Congressman Poff’s explanation.

I mean, the idea that it was to solve only the “ministerial” and “routine” congestion, now would not solve much it all, I would say?

Michael Kimmel:

Well, I believe that this listing of duties which eliminate from the judge’s burdens of a significant amount on the number.

For instance, of matters excluding the criminal which are the main thing was 36,000 matters disposed of by Magistrates in the last fiscal year.

William H. Rehnquist:

Yes, but I would dispute whether those can be called either ministerial or routine.

I mean, a pretrial discovery motion can be critical to the outcome of a case.

Michael Kimmel:

Well, I agree with that and the point here is even when the Magistrate does make an initial ruling these are again recommendations which are subject to review by a judge, but particularly in the event of an objection, but this will eliminate —

William H. Rehnquist:

Well, that is true of the challenge review of the social security?

Michael Kimmel:

But there the distinction would be the other part of what Representative Poff said that the judge, the point of relieving judges of the minor burdens would be so that judges would have more time to devote to the actual substance of litigation — to the actual of decision of cases and I think that that was the thrust to make this distinction.

The Senator Tydings, who was the chief sponsor of the Act, he explained at page 73 that he went so far to say it was intended, 636 (b) to relieve judges of some of the routine non-judicial burdens.

I actually would not call this acting on discovery motions non-judicial, but the point is the lesser type of problems that used to face judges all the time.

He also emphasized that District Judges should be able as the result this Act, devote more time to the actual writing of opinions.

Now, the Senate report number 371 is probably the most informative statement of Congress of what it is intent was in enacting this additional civil duties provision in Section 636 (b).

The report does not state that Congress intended to confer a full or maximal power to District Courts to invest Magistrates with several jurisdictions.

The reports based generally of relieving District judges of some of their minor burdens and of culling from a District Judge’s workload, matters that are more desirably performed by a lower tier of judicial officers.

The report further explained that the reason why Congress authorized flexibility in the assignment of additional civil duties to magistrates that is not limited to the three examples was not to relieve judges of their adjudicatory responsibilities, but precisely the contrary.

So that there would be increased time available to judges for the careful and unhurried performance of their vital and traditional adjudicatory duties.

Now, one of the vital and traditional adjudicatory duties of judges is that judicial review of administrative record cases under the substantial evidence standard, including social security cases.

Justice Frankfurter’s opinion in the Universal Camera case on the responsibility of judges to review the whole record in substantial evidence cases demonstrates that decision of these cases is not simply ministerial as the amicus asserts in its brief, but requires delicate judicial judgment and a first hand evaluation of the record.

Michael Kimmel:

If a judge contentiously performs this task in a social security case, including unnecessary review and evaluation of the administrative record, it appears he would be duplicating the work performed by a magistrate.

If he does not, it appears that he would not be exercising the adjudicatory function which is expected of him under the Magistrates Act.

Either way the practice which is authorized by this District Court rule seems to be inconsistent with the purpose of the Magistrates Act to relieve District judges of non-essential functions.

The dilemma created by this procedure was spotted by Judge Sprecher in the decision, TPO versus McMillen in which he stated, we do not think situations of this kind would be remedied by the magistrate simply recommending to the District Judge instead of adjudicating.

We believe that on the basis of the legislative history as I say that there is a limited intention by Congress not to transfer the actual major responsibility in deciding civil cases to magistrates.

Now, what Congress did though in the Magistrates Act in the first example, that is Section 636 (b) (1) was to actually authorize magistrates to make a review and recommend decisions as a special master, that is under Rule 53.

This is the only place where Congress and anywhere focused on this kind of a role for magistrates.

But Rule 53 limits the reference of civil case to special masters to exceptional cases whether detailed matters of account or some exceptional condition requires, if it is meant to be the exception of the rule.

So this particular authority which certainly not authorizes a blanket reference of all social security cases to the magistrate as this General Order No. 104-D calls for.

We realized that in general or traditionally the references to masters has been generally in cases involving fact finding functions, but we do think that Rule 53 is limited just to fact-finding type of cases or cases involving factual disputes.

We think that Rule 53 concepts involves reference of any kind of a civil case to a master or hear a magistrate as master before he recommends a decision on the merits.

Warren E. Burger:

There are obvious differences between a pretrial conference and the trial that — what would you focus on is the distinction between this initial exploration by the magistrate and the pretrial procedure?

Michael Kimmel:

Mr. Chief Justice —

Warren E. Burger:

He is one of the final to begin with?

Michael Kimmel:

Typically the — our problem certainly is not final and in the pretrial it is very definitely not final.

The pretrial situation is simply to clarify issues, establish the basic routine and enter the schedule for trial, you might say and to limit unnecessary witnesses.

I do not think that there is any in the pretrial conference situation any attempt by magistrate to actually decide the case or to purport to recommend how the case should be decided.

That is a very useful function of magistrates —

Warren E. Burger:

What if a pretrial examiner did?

Michael Kimmel:

Well, I think that the — it would be subject to reversal by the District judge.

If he purported to decide a —

Warren E. Burger:

Is the Initial step here subject to reversal issue put it to the District Judge?

Michael Kimmel:

Mr. Chief Justice if it is a pretrial conference I believe that the —

Warren E. Burger:

I am speaking of the procedure involved here that is your challenge?

Michael Kimmel:

Yes.

Warren E. Burger:

That subject to review by the District Judge, right?

Michael Kimmel:

It definitely is subject to review and the District Judge does have the option where he would recognize to not accept the magistrate’s decision.

We recognize this that it is a recommended (Voice Overlap)

Warren E. Burger:

Is it an option or is it part of his inherent power?

Michael Kimmel:

Well, he has the power both under the rule itself and inherently as a Judge to decide the case, but we think that whether or not a magistrate actually is acting as a special master and comes under the restrictions there.

Michael Kimmel:

The magistrate in this situation, under this rule is still exercising significant adjudicatory responsibilities in these cases and that is what we say is inconsistent with general purpose of the Act.

We do not think that Congress intended to authorize the significant adjudicatory responsibilities even it were cast in the form of a recommendation.

Thurgood Marshall:

This is — if the Judge has to pass on?

Michael Kimmel:

Very definitely.

He does.

Thurgood Marshall:

He has to have oral argument on that?

Michael Kimmel:

No.

That is one of the things.

It is not even clear —

Thurgood Marshall:

But when the suit is filed the judge will calendar the matter for oral argument before him, if he deems it necessary or appropriate?

Michael Kimmel:

That is correct in most cases.

Thurgood Marshall:

So who has the final say on this, the magistrate or the judge?

Michael Kimmel:

The Judge, we recognized from the beginning, has the option to decide the case and to include a complete new adversary proceeding before him.

That does not a current practice, but it is true that this rule does not go as far as to purport to have magistrate decide the case.

Thurgood Marshall:

Is the practice before us?

Michael Kimmel:

Your Honor?

Thurgood Marshall:

You said it does not happen in practice.

Do we have that before us?

Michael Kimmel:

In our —

Thurgood Marshall:

In this record?

Michael Kimmel:

Well, in our petition we did introduce some statistics which intended to show what the actual practice was and I admit that they were not very widely based statistics.

But all I can say is that from my own knowledge that the judge does not usually schedule a complete new round of proceedings before him.

In fact there is a great deal of opposition to that suggestion expressed by many commentators and judges because they feel that would definitely eliminate the use of the magistrate which is to relieve judges of this type of additional workload.

We think that even it were cast in the form of a recommendation, Congress did not contemplate this major type of role for magistrates and specially without — not only saying so in the statute, but not even mentioning it in the legislative history that covered the statute and the legislative history as I indicated, seem to indicate just minor functions were intended.

Now, where Congress has authorized officials other than judges to exercise significant adjudicatory functions in the District Courts it has expressly said so.

Examples of course would be the referee in bankruptcy, masters and Court of Claims Commissioners where these duties are spelled out at clear terms of the statute.

Warren E. Burger:

Do you think the magistrate in the situation before us now is exercising more or less power if you can make the comparison than a bankruptcy referee as traditionally exercised?

Michael Kimmel:

Probably be about the same amount, I would think Your Honor, although it is true that I believe under the bankruptcy statutes the referee’s decision is clothed with finality unless a party objects to the District judge.

I believe that is the way it works.

Whereas the magistrate situation, at least under this particular rule, it does not purport to make it initially final unless a party objects, but it simply handed to the District Judge to approve or reject.

Michael Kimmel:

That is how it works.

Warren E. Burger:

How is that very much different from the bankruptcy then?

Michael Kimmel:

Well, it is not really, but our point here your Honor is that where Congress intend it —

Warren E. Burger:

Qualitative, I am speaking in a qualitative sense, the quality of the function?

Michael Kimmel:

The quality of the function is probably about the same, but the point I was trying to make with example of referees in bankruptcy is that where Congress intends such a major role, I think in the official in question, it is spells it out and it has with referees in bankruptcy.

Their duties are spelled out in detail in the statute and they are authorized to this first.

Warren E. Burger:

But the referee in bankruptcy is dealing with a precise kind of function that is much easier definition, would you not agree than a broad range of authority that Congress appears to have at least contemplated for magistrates?

Michael Kimmel:

Well, I think Your Honor that whether it is just bankruptcy or whether it all civil cases, both require that there be some definition by Congress to whether its intent — the official in fact more.

In fact, in a case where a magistrate can exercise a significant adjudicatory role on a whole broad category of litigation that Congress at least should indicate this that this is purpose as intended in words in the statute and in turn in the legislative history.

Now, we agree that transferring to magistrates the work of initial review of social security cases may additionally lighten the workload of District Judges, and we also do not doubt that this may have benefits.

But we think a question of policy is involved, although the review of these cases should be transferred to magistrates.

We do not think Congress went that far when it enacted the 1968 Act and at best it enacted a general and an ambiguous provision which simply did not come to grips with this particular problem.

If Congress wishes to establish authority for Magistrates to act in this capacity, it should consider the problem and enact the statute in clear terms which would authorize it if it thinks it is sound practice.

William H. Rehnquist:

Well, your position has to be that the statute does not authorize what the District Court did here, is it?

Michael Kimmel:

Should not be construed or authorized it, yes or should not authorize it.

William H. Rehnquist:

You cannot really say that perhaps it authorized it, but it is not wise to do it?

Michael Kimmel:

Well I think the wisdom enters into it in this way that it is a matter where a policy question is involved.

If it is in a statute some reflection of that policy should be shown either in the statutory language or in the legislative history.

It is not shown in regard of this.

So this Court, it seems to me should differ to Congress and let it specifically think what it wants done with this problem.

Now, Congress actually as I mentioned before has a Bill before it which would solve this problem and it would authorize magistrates to this.

I do not know whether that Bill that will be accepted or rejected and in the circumstances I do not think that the Court should assume that Congress has already authorized the procedure in this genuine and guarded measure that it enacted in 1968.

Now, in sum we would urge the Court to adapt an interpretation of the Magistrates Act which would clarify three things respecting civil jurisdiction of magistrates.

First, that the Act does not permit the reference to magistrates, the merits of civil litigation, including dispositive motions, except under the restrictions of Rule 53.

Second, that the Act would permit the reference of most preliminary procedural or non-dispositive motions to magistrates for review and initial ruling and finally any ministerial matter could be referred to a magistrate for final action.

Now, in social security cases this would mean that the judge have to decide himself with the case.

The magistrates would still have though a great deal of authority to relieve the burden on District judges.

The statistics of the administrative office as I have said reflect that some 35,000 matters in the civil area —

What you just said indicates that this precludes really Magistrates only from comparing recommended dispositions, opinions and the like?

Michael Kimmel:

On the merits of civil litigations.

Yes.

Michael Kimmel:

Yes, Your Honor.

Otherwise they can do anything that may be assigned, but may they do this by general rule?

Is it your submission would that — that this have to be done, I mean, if they just took this rule and simply amended it and said everything except the recommended disposition for example?

Michael Kimmel:

Well, their rule requirement is spelled out in the statute, I think the statue contemplates that whatever magistrates do be done pursuant to a rule and I think the rule would — right, I think it could specify all pretrial non-dispositive motions could be referred to a magistrate where the magistrate could make an initial ruling and recommendations to the District Judge.

But not, decisions are (Voice Overlap)?

Michael Kimmel:

Not decisions that affect the actual outcome of litigation.

Byron R. White:

Except for acting as a special master would be (Voice Overlap).

Michael Kimmel:

That is correct and that would have to be governed by the rules of Rule 53.

William H. Rehnquist:

When you say pretrial non-dispositive motions, it really boils down to discovery motions, does it not?

Michael Kimmel:

Not only discovery, Your Honor.

There are a vast range of other duties out there.

I have listed some, but it is beyond discovery.

It is true that that would be concerning a major area, but there are many rules in the Federal Rules of Civil Procedure which require action by a judge, at various states of litigation, ought to make a judgment.

On cause for instance, where a magistrate objection to cause, where magistrate again.

It is not dispositive litigation, it does not turn the whole case, but he could relieve judges of many functions in these areas.

William H. Rehnquist:

But for free of — your cause example, frequently the cost is taxed against the loosing party, unless the judge otherwise provides.

I would think that that would be a stronger case for requiring the judge to do it.

The person who stands through the testimony has some feel for the equities of the parties then perhaps a motion for summary judgment?

Michael Kimmel:

Well, if it does turn on something that a judge already would be most familiar with then it would probably not be a sound idea.

I would suggest in that as an example where to set aside a cost Bill maybe on technical grounds of one kind or another where a magistrate could be refer that problem to make a — recommend a decision, but it is not going to affect the entire litigation.

It is that kind of a distinction I am trying to draw.

My time has expired, so unless there are further questions, I will resume.

Warren E. Burger:

Very well Mr. Kimmel.

Mr. Ehrenhaft.

Peter D. Ehrenhaft:

Mr. Chief Justice and may it please the Court.

I am honored and surprised to be here, honored to be asked to be a friend of the Court in this case, a bit surprised as I gather some of you gentlemen were by the Government’s position in this case because it does not oppose this general rule adopted by the District Court on Constitutional grounds which I had thought might be a valid basis for dispute.

The Government has conceded that the general order adopted by the District Court does comport with constitutional requirements so there is no further need for us to debate that issue.

I agree with the Government that this kind of a procedure is authorized by the constitution.

We are, therefore, limited to a discussion of whether the Magistrates Act by its terms authorizes the kind of procedure which the District Court adopted and which the Court of Appeals affirmed and in that connection, I will discuss three points.

Peter D. Ehrenhaft:

One, what kind of a case is Mathews versus Weber?

What does the statutory text say about that and what light does the legislative history shed on that text?

What kind of a case is it?

Well, this is already been discussed.

This concerns the review of the determination by the Secretary of Health Education and Welfare that Mr. Weber is not entitled to a Medicare payment and that decision is to be reviewed with the view of determining whether the decision is based upon substantial evidence in a closed record.

There is no need, no opportunity, no right on the part of either the secretary or Mr. Weber to introduce new evidence, to bring witnesses before the Court, no right of any of them to do anything other than present legal arguments based upon that closed record as to whether substantial evidence exists in the record.

There is, therefore —

Byron R. White:

Do you think prior to that Magistrates Act, there could have been rule of the Court that every social security review case will be assigned to a special master?

Peter D. Ehrenhaft:

I do not think so because the rules with regard to special masters is a different rule than the creation of the magistrate under the Magistrates Act.

As I plan to discuss later, I do not believe that the Magistrates Act turned every magistrate deciding a civil case into a master.

I believe that its intent was that if the magistrate is appointed as a master, Rule 53 applies to the magistrate when he is acting as a master, but the purpose of the Magistrates Acts was intentionally to —

Byron R. White:

Even if so a District Court said refer every social security case to a magistrate even though it could not refer every social security to a special master?

Peter D. Ehrenhaft:

That is right because —

Byron R. White:

Even though the Magistrates Act says that a magistrate may act as a special master where it is appropriate for a special master to act?

Peter D. Ehrenhaft:

That is right.

I think that the authorization for the District Courts to use Magistrates in certain capacities is not the same kind of a legislative grant as the authorization to use Magistrates as masters when they are to act as masters.

I think that the procedure contemplated by this particular District Court Rule is that the magistrate will recommend a disposition based upon his review of a closed record and that is a very different kind of a role then is played by a master who may well hear witnesses, who may well consider contested fact assertions and who is —

Byron R. White:

I think there is some inference from the — maybe you do not — apparently you do not that there are some inference in the Magistrates Act that the magistrates’ role in civil cases should be no greater than would be allowed to special master?

Peter D. Ehrenhaft:

I do not believe that either the text or the legislative history support such a construction and I hope to address that in a moment sir.

Byron R. White:

Alright.

May I just ask Mr. Ehrenhaft?

You suggested that it is already in the legislative authority to the magistrate on a closed record?

Peter D. Ehrenhaft:

Yes.

Does that imply that not as a special master, but simply as magistrate, the magistrate has no authority to conduct hearings and hear witnesses?

Peter D. Ehrenhaft:

In this particular situation with which we are dealing here, he can hear no witnesses.

He is taking a closed record and receives briefs and hears oral argument, but he hears no witnesses.

He, therefore, has no occasion to consider the demeanor of witnesses to assess credibility.

His task is simply to cull the record for the substantial evidence that supports the secretary’s —

And that is because I gather in dealing the social security cases?

He has no occasion or very infrequently or exceptionally, I suppose ever to hear any testimony?

Peter D. Ehrenhaft:

That is exactly right and that is why I say that the opinion of the Court of Appeals in this case which I am supporting specifically says, we are dealing here with a social security review case.

We are not dealing, we will reserve for another time, other kinds of cases and I would like to suggest that for example Wingo versus Wedding in which this Court first considered the Federal Magistrates Act was that different kind of a case.

There was a situation in which the magistrate was being asked to hear witnesses, to make crucial factual determinations in the habeas corpus context and the Court said that that could not be reconciled with the express language of the Habeas Corpus Act.

This is not a case like TPO versus McMillen which the government counsel cited and in which the Court of Appeals for the Seventh Circuit after reviewing legislative history.

I believe correctly said that a motion for summary judgment that totally determines litigation is not appropriately submitted to a magistrate acting quasi magistrate and this is a case as we have said, a social security Act case where a closed record is reviewed and a recommended disposition only is referred to the district judge who then can receive additional briefs, who can then accept the recommendation of the magistrate or reject it.

The fact that in the overwhelming number of cases, the district judges do accept the magistrate’s disposition, I suggest is not an adverse reflection on the district judges that they are thereby abdicating their duty, but I would hope a reflection of the adequacy of the service being rendered by the magistrates and in fact there are a few cases that I have cited in my brief in which District Courts have disregarded or changed the recommended disposition urged by the magistrates.

Well, the importance of this procedure, I think is highlighted by the administrative office of the Court’s Fiscal Year 1975 Report.

It indicates that in 1975, 5,800 Social Security Act cases were filed in the courts or in a pace exceeding approximately 100 a week.

Of course these cases are not uniformly spread throughout the District Courts.

There are some in areas where there are coal mines in particular where black loan cases apparently have generated something like 559 Social Security Act cases in West Virginia and in Kentucky as well 800, in West Virginia 500 and so on.

There is a great concentration of those at the present time in those jurisdictions, but even we are talking — whether we are talking about the Central District of California which is the jurisdiction from which this case arose, Los Angeles, 78 Social Security Act cases were brought in that District Court and referred to magistrates during the Fiscal Year 1975.

So, it is a significant role that magistrates have been asked to perform in this case.

(Inaudible) social security case.

Are there others where a single district judge has reviewed a closed record, or agencies or something?

Peter D. Ehrenhaft:

Yes.

In General Order 104, there are a number of additional kinds of cases that are cited.

Now, I have taken a quick look to see whether the standards are the same under those other statutes.

In many of them they are, but I have not really done research to indicate to ascertain the extent to which —

(Inaudible) interstate commerce, in which the Three-judge Court cases, as long as that obtained I gather that is all been changed under the new legislation, but —

Peter D. Ehrenhaft:

Well, I know —

— these magistrates (Inaudible)?

Peter D. Ehrenhaft:

I do not know.

I know that there are Military discharge review cases that are included in General Order 104.

There are some NLRB review cases that maybe so referred.

Now, the extent to which those also are to be viewed on a closed record as I say, I cannot honestly say.

William H. Rehnquist:

One gives the impression what kind of a dogs that were referred to the masters, do you not think to the magistrate?

Peter D. Ehrenhaft:

Without characterizing them necessarily that way Mr. Justice Rehnquist, I think that you have put your finger on an important distinction between the cases that are referred to the magistrates and Rule 53 because the reference to magistrates, I think is exactly the opposite of the reference to a master that Rule 53 is intended to cover.

Now, it is precisely the routine case that is the kind of a case that the magistrates can appropriately look at by reviewing a closed record and that Rule 53 was addressing a wholly different problem.

That is the exceptional case where the court needs assistance from some outsider and I think that Rule 53 when it said that only the exceptional case may be referred was drafted as it was to avoid the abdication by judges of important adjudicatory functions in difficult cases where they did not wanted to assign or felt that their dockets were too crowded and the legislative history of this Act clearly indicates that the Congress recognized the validity of the La Buy versus Howes Leather case here that reference as to the masters were to be restricted to the truly exceptional case.

Potter Stewart:

When did the present language of Rule 53 came along vis-a-vis the La Buy decision of this Court?

Peter D. Ehrenhaft:

I believe it preceded it, but I am not a 100% sure of that.

The concept that was expressed certainly has a long tradition and there was hostility to references to masters even preceding the La Buy case.

As we have said earlier, the language of the Magistrates Act is not as clear as it might be with respect to the additional duties that a magistrate may perform, but I would like to just briefly touch on one point that Government counsel made for the first time in his argument here which concerns the use of the words such additional duties which he had suggested is somehow a limitation on the duties of the magistrate because it would refer to the three illustrative subsections of Section B.

And looking at Section 636 of the Magistrates Act as a whole, I note that Section 636 (a) indicates that the magistrate serving under this chapter shall have the following duties, including those that had traditionally been performed by United State’s Commissioners and the power to administer oaths and the power to conduct trials in petty criminal cases.

636 (b) then goes on to say that the District Courts may by rule established, assign such additional duties as maybe specially designated and I believe the use of the word “such additional duties” flows from additional to subsection (a) rather than being a reflection of the examples that are listed in the following portions of subsection (b).

What light does the legislative history shed on this statute?

I have suggested in my brief that not only does a legislative history reflect a desire on the part of the draftsman of this legislation, Senator Tydings, Representative Poff and others to provide as wide ranging a use of magistrate as is consistent with the constitution and with statutory law, but that the Judicial Conference of the United States which actively supported this legislation with the limitations that are now contained in subsection (b) and which has supported this legislation ever since has always interpreted it to include precisely this kind of service by magistrates and a subsequent Act of Congress raising the salaries of magistrates, specifically referred with approval to the duties performed by magistrates in reviewing social security cases.

And I do not say that subsequent legislative history is infallible or the most appropriate guide at all to what a previous Congress meant, but I do cite it to show that it is not in anyway inconsistent with a continuum of legislative intent that magistrates be dignified as powered judges of the District Courts able to assist judges in performing duties such as those that perhaps not dogs, but in any event of a routine character which would enable the District judges to reserve their time and attention to other matters more serious perhaps.

Well I must say that I am looking at 15 (a), 16 (a), 17 (a), in the petition as a matter which this order covers a lot more than just dogs?

Peter D. Ehrenhaft:

My commission as the friend of the Court is to support the judgment below and as indicated I think that the 00.

I believe this are very comprehensive?

Peter D. Ehrenhaft:

They are very comprehensive and it could be that there are situations in which the District Court in its enthusiastic embrace of the Magistrates Act has exceeded the balance which the legislature intended.

Byron R. White:

But none of them involves the hearing of witnesses, those long lists?

Peter D. Ehrenhaft:

As I say I have not examined that list to determine that because —

It does not include habeas Corpus matters which presumably is relegated to the back burner in Wingo against Wedding anyway?

Peter D. Ehrenhaft:

Well, I would think so.

They are now the — well, I think that even under Wedding, however, the magistrate is permitted to consider a Habeas Corpus petition and recommend whether a hearing should be held.

Right.

Peter D. Ehrenhaft:

And I do not call whether General Order —

(Inaudible) limitation in the rule as I read?

Peter D. Ehrenhaft:

I see.

Well, it could be that the — of course the rule predated the Wedding decision and would have to be considered amended accordingly.

William H. Rehnquist:

You have got two classes, Civil Rights Act cases filed by a plaintiff appearing in proffer, but who is not in confinement then in Civil Rights Acts case where plaintiff is confined, but has retained counsel?

Peter D. Ehrenhaft:

There could well, as I indicate be situations in which General Order 104 is too broadly drafted and I think that this Court should use this revocation of this case to provide guidelines to the District Courts as to how they can under the existing legislation effectively use magistrates.

Warren E. Burger:

(Inaudible)Mr. Ehrenhaft to defend the entire general order or only that part of it that relates to — with the social security?

Peter D. Ehrenhaft:

Well, I was appointed to support the judgment below.

The judgment below I think in very express language indicates that they are considering this case solely from the perspective of the social security review case.

I guess directly that involves, does it not Mr. Ehrenhaft, only paragraph A of rule number 1 that has 15 (a), does it not?

The petition that goes on for pages but that only its action is to review the most determination, or the entitlement of benefits under Social Security Act of the statutes, including, but not limited to actions filed 405 (g)?

Peter D. Ehrenhaft:

405 (g) is very precisely the one that we are involved with here, yes.

Peter D. Ehrenhaft:

Therefore, to sum up it is my contention that if there are no constitutional doubts which neither the Government nor I seem to have in this case, the legislation is sufficiently broad to encompass this kind of duty and I would place the burden on those who believe that it would not be appropriate so to interpret the statute to change it through Congressional action rather than the other way around.

Thank you very much.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.