Transcript

IN THE SUPREME COURT OF THE UNITED STATES

KATHY THOMAS, Petitioner, v. DOROTHY ARN, SUPERINTENDENT, OHIO REFORMATORY FOR WOMEN

No. 84-5630

October 7, 1985

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:05 a.m.

APPEARANCES:

CHRISTOPHER DANAHY STANLEY, ESQ., Cleveland, Ohio; on behalf of the petitioner.

RICHARD DAVID DRAKE, ESQ., Assistant Attorney General of Ohio, Columbus, Ohio; on behalf of the respondent.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments first this morning in Thomas against the Superintendent of the Ohio Reformatory for Women.

Mr. Stanley, you may proceed whenever you are ready.

ORAL ARGUMENT OF CHRISTOPHER DANAHY STANLEY, ESQ., ON BEHALF OF THE PETITIONER

MR. STANLEY: Mr. Chief Justice, members of the Court, if it please the Court, ladies and gentlemen of the audience, it is an honor to appear before the Court. I understand from the clerk that this is the 50th anniversary of the very first argument in this building, so I am doubly honored that I am appearing before the Court.

I would first express what I would consider my mea culpa. I wish that I had filed objections in this case. It would have prevented having to come up to the Supreme Court for the decision in this case. It would have prevented a lot of time from having to be expended on this case.

However, I didn't, and I think that given the case law involved in this Court and the circuits that it wasn't necessary, and I would like to proceed with the argument.

A little history of the case. My client was charged with murder in Cuyahoga County in Cleveland, where she was convicted. On appeal, Judge Krensler, who is now a Federal District Court Judge in Cleveland, held that from the current psychological and sociological research has emerged a profile of a battered woman as one who displays unique behavioral patterns and psychological characteristics as well as differences in reaction and perception, all of which are not within the knowledge of the average juror.

He concluded that without expert testimony on the battered woman syndrome, a jury would be unable to have a sufficient comprehension of the defendant's state of mind at the time of the homicide. The Ohio Supreme Court granted review of the case and reversed the reversal.

I then went to the Federal District Court Judge in Cleveland. It was referred to a magistrate, who recommended that the petition for habeas corpus be denied. The District Court Judge had a de novo determination. Notwithstanding the failure to file objections, the Sixth Circuit, implementing what is now known as the Walters policy, held that by failing to object to the magistrate's report, one waives the right to appeal to the circuit from the District Court order. I then petitioned for cert and this Court granted it.

There are basically four points I would like to make on argument today. The first and most important one is the interplay between the magistrate's act and Article 3 of the United States constitution.

When our forefathers were setting up the new government after the Revolutionary War, they were very wary of putting all the governmental power, basically the legislative, executive, and judiciary, into the same hands. Accordingly, they felt that it was necessary that there be an independent judiciary. They wrote Article 3.

Article 3 basically says that there shall be a Supreme Court and such inferior courts as Congress may establish. It also said that those courts were to be staffed by judges who have life tenure and a set salary.

I must admit that Article 3 at first blush seems a relatively simple statement of fact. It spawned a great deal of litigation in this Court. I do not pretend to understand Article 3 and the litigation it has spawned, particularly in such cases as Northern Pipeline.

However, with regard to the interplay between Article 3 and the Magistrates Act, this Court has quite clearly stated what the law is. Now, the Magistrates Act was provided in Congress in 1976 and subsequently amended basically to set up a series of inferior judicial officers, inferior, that is, to the District Courts, to help the District Courts with the overwhelming case law that they were being presented with.

Basically, they may consider nondispositive pretrial matters, conduct evidentiary hearings of dispositive motions, habeas corpus, et cetera. In the section that we are dealing with here, that is, 28 USC 636(b)(1)(B), they can conduct hearings on a habeas corpus and then provide the judge with proposed findings of fact and recommendations for disposition by the Judge. Parties may file objections, and the Judge shall make a de novo determination of those portions of the report objected to. However, the last sentence, I think, is the key.

The Court may accept, reject, or modify the report. This Court in several cases has considered the interplay between Article 3 and the Magistrates Act, most often through the pen of Chief Justice Burger.

The basic cases are the United States versus Raddatz and Mathews versus Weber. This Court quite clearly has said the Magistrates Act is constitutional because the ultimate decisionmaking rests with the United States District Court. Those cases basically came up with three points.

One, in going over the legislative history of the Magistrates Act, this Court has said Congress was sensitive to the Article 3 considerations. They were sensitive to not putting in a magistrate Article 3 duties. Hence this Court stressed and Congress stressed that the ultimate adjudicatory determination was reserved to the District Court.

The second point this Court has made in Raddatz and Mathews is, the Court says that the ultimate authority and responsibility to make an informed formal determination must remain with the Judge.

Three, the Court stressed the magistrate's role is one of helping the Court to narrow the dispute, focusing on the legal issues. However, it again stressed the Court alone remains the ultimate decisionmaker. In sum, this Court said in Raddatz and Weber, the delegation of the magistrate to hear issues does not violate Article 3 so long as the ultimate decision is made by the District Court.

QUESTION: Mr. Stanley, did you receive notice of the waiver rule?

MR. STANLEY: Yes. In the --

QUESTION: Did you request to file objections within ten days?

MR. STANLEY: In the printed portion cf the magistrate's report, at the very end, contained what I now recognize to be notice that if I don't file objections, there would be a waiver.

MR. STANLEY: Did the District Court give you an extension of time within which to file objections?

MR. STANLEY: Yes, they did.

QUESTION: Did you file any?

MR. STANLEY: No, I did not.

QUESTION: How much additional time did he give you?

MR. STANLEY: I --

QUESTION: Two or three months?

MR. STANLEY: Two or three -- whatever the time. I don't remember.

QUESTION: How would the District Court ever know that you objected if you failed to file any objections?

MR. STANLEY: First of all, if I may say, the issues were fully briefed. When I filed the petition for habeas corpus, I included with it a memorandum of law concerning the issues I was to raise. It was approximately 20 pages long. In my opinion, this Court's decisions in Raddatz and Weber mandate independent judicial review of the magistrate's report by a District Court.

QUESTION: On its own -- on its own initiative.

MR. STANLEY: No, on the initiative -- what is included in 626(b)(1)(8). That is, failure to object -- the penalty for failure to object as enunciated by Congress is no de novo determination, he Court may accept, reject, or modify the report of the magistrate. It seems that this Court has quite clearly said the Court must be the ultimate decisionmaker. Otherwise, you have a situation where the magistrate ends up being an Article 3 judge. For instance, in the Sixth --

QUESTION: Mr. Stanley, if you had filed objections, would you be here now?

MR. STANLEY: Well, probably not, but hopefully I would have won down there and you would have accepted it anyway.

QUESTION: All of this is brought about by your failure to file a piece of paper.

MR. STANLEY: That's correct.

QUESTION: And that is what we are using our time up for.

MR. STANLEY: Pardon?

QUESTION: That is what we are using our time up for.

MR. STANLEY: Well, Your Honor, I believe it is a much more serious matter than that. Here we have Raddatz and Weber requiring a District Court judge to make a final determination. The Walters policy as enunciated by the Sixth Circuit and other circuits in their policies have stated that the District Court doesn't really even have to consider the case if you don't file objections.

That raises a magistrate to the ultimate decisionmaker in a case.

QUESTION: Mr. Stanley, if you are right that Raddatz and the other case stand for the proposition that the District Court is an independent adjudicator, the adoption of your view would really allow counsel losing before the magistrate to simply go directly to the Court of Appeals without even paying any attention to the District Court.

MR. STANLEY: Well, I disagree with you, Justice Rehnquist. First of all, the magistrate's report is not a final appealable order. Congress in writing the statute says, if there are no objections, the District Court doesn't have to make a de novo review, but the District Court still must consider the case. It must be the ultimate decisionmaker.

The District Court then making an independent review but with the magistrate having focused the issues spends much less time on the case, makes a determination, and that is -- it is from that --

QUESTION: But the District Court would surely be even more focused if it had the benefit cf objections to the magistrate's report from the losing party.

MR. STANLEY: I am not going to disagree with you, Your Honor. However, it seems to me, for instance, in this case, where I had filed a 20-page brief, the issues were before the Court. It was an issue of law. This is the sixth court that my client has been to, that I have been to on her behalf. To say that there is a waiver of anything is, in my opinion, untenable. We have -- I raised the issue. I briefed the issue. The magistrate came to a different conclusion. All the District Court judge had to do is in fact what he did dc, Because he did conduct a de novo determination anyway. What he did do was read my brief, read the magistrate's report, come to a conclusion.

QUESTION: Well, in this instance, how was Article 3 violated, because by your own statement the District Court did give review to the magistrate's finding here, and the finding became the District Court finding. Now, if you make no objections in the District Court, if the proceedings at trial have been in the District Court initially, a court of appeals is not going to consider things that aren't raised at the District Court level. Why should it be different with the magistrate's report that is considered by the District Court?

MR: STANLEY: Well, Justice O'Connor, if one reads the opinions in the circuits, there is only one circuit report which discusses this issue in terms of procedural default. The Sixth Circuit does not talk in terms of procedural default. The Sixth Circuit says specifically you waive your right to appeal, period.

Now, in a procedural default, you are not waiving your right to appeal. You still have the right to appeal, but the Circuit Court says you didn't preserve it below. It seems to me --

QUESTION: The effect is the same. In either event the Court of Appeals wouldn't be hearing it. Isn't that right?

MR. STANLEY: That's correct, but. it seems to me in a situation like this it is a question of form over substance.

Where you have, Number One, a brief on the issue, the matters that are in issue before the Court on behalf of the petitioner and the magistrate's report, you have a right as enunciated by Congress to appeal from the denial of a habeas corpus. That is an independent right that Congress has seen fit to give to a petitioner in a habeas corpus proceeding. I don't know that a court can say we are going to ignore Congress and we are going to impose this penalty. Further --

QUESTION: Well, Mr. Stanley, did I understand you to say that the recommendation of the magistrate to which you did not object was nevertheless the subject of de novo review by the District Judge?

MR. STANLEY: That's correct.

QUESTION: And does the judgment that the District Judge entered reflect that determination on that issue?

MR. STANLEY: The judgment of the District Court reflects that there was a --

QUESTION: No, did it reflect the determination of the issue, the subject cf a recommendation by the magistrate to which you did not object?

MR. STANLEY: That's correct.

QUESTION: And you didn't agree with that -- the judgment in that respect?

MR. STANLEY: On the District Court? No, I did not.

QUESTION: Is that what you wanted to have reviewed in the Court of Appeals?

MR. STANLEY: That is correct. I filed a notice from the judgment entry of the District Court, notice of appeal to the Sixth Circuit.

QUESTION: Whether the District Court purported to review the report de novo or not, the only time that you get an appealable judgment is when the District Judge enters an order.

MR. STANLEY: That's correct.

QUESTION: In any case, it is going to be a District Court judgment.

MR. STANLEY: That's correct.

QUESTION: And what do you say -- why does that raise a problem under Article 3?

MR. STANLEY: Well, to be honest with you, Judge, as you pointed out in your dissent in Northern Pipeline, I am not convinced that I know what --

QUESTION: You are taking a lot of your time on this Article 3 issue. You have got something else going, haven't you?

MR. STANLEY: Yes, Your Honor. Only because Article 3 in interpreting the Magistrates Act has said the reason that it is constitutional is that the decisionmaker must be the District Court.

QUESTION: Well, it always is.

MR. STANLEY: That's correct, and since the District Court must review the magistrate's report, whether objections are filed or not, it seems to me that the Walters policy and the other circuits are wrong when they say that there is a waiver of the right to appeal, because --

QUESTION: You have consumed 17 minutes now on this point. If you want to save some time for the other matters, you should get on to it.

QUESTION: I must say that if you are right, then even if Congress said you either object or you waive, that would be unconstitutional.

MR. STANLEY: I would agree with you.

A second point that I wish to make in my remaining 13 minutes --

QUESTION: May I ask one question before you go to your second point?

MR. STANLEY: Certainly.

QUESTION: Do you understand the Sixth Circuit rule to be that they think the statute compels a waiver, or that as a matter of practice in the Sixth Circuit we will enforce the waiver rule?

MR. STANLEY: Well, their writing, the language that they said was, although you may file --objections is something that you may or may not do, we feel they felt that under the supervisor power they could force this issue by making it a rule in the Sixth Circuit. One of the dangers of that in my opinion, Justice Stevens, is the fact that different circuits have different rules for jurisdiction, and if we go to what was going to be my third point, which is that the courts cannot limit their own jurisdiction that Congress has given them, in different circuits some people can appeal. In four of the circuits you can appeal no matter what the magistrate does, whether or not you file objections or not, you can appeal from the denial of a habeas.

In the sixth circuit you cannot appeal from a denial. You do not file objections. In one of the circuits they talk about procedural default, and one of the circuits, the Eighth Circuit, rejects the waiver theory. So, you have differing jurisdictions of the Court of Appeals as a result from these differing policies with regard to whether or not you file objections.

QUESTION: Well, there may not be a difference after this case is decided.

MR. STANLEY: Hopefully not.

My second argument is a due process argument as it was enunciated in United States versus Raddatz by the Chief Justice, which basically says that what due process you are entitled to is appropriate to the nature of the case. Citing Mathews versus Aldridge, it goes into the question of private interests, the risk of erroneous determination by reason and process supported, and the public interest in administrative burdens.

It seems to me that when we rare talking about the great petition of habeas corpus, and where Congress has required the right to appeal as giving you that right, that due process requires in habeas corpus that the ultimate decisionmaking be with the District Court, and that the right to appeal be given to a petitioner.

I have already mentioned in reference to Justice Stevens' argument my fourth point, which is that I do not believe that the courts can limit their own jurisdiction.

I would say that in summation, that Walters is wrong because it limits their jurisdiction. Congress never said in its statute that a failure to object is a waiver. There already exists a penalty for failure to object, which is, you do not get a de novo determination. The Statute says, if there are objections, there shall be a de novo determination. That is the penalty for failure to object, not waiver of the right to appeal.

QUESTION: Well, you say you do not get one, but do you argue that the judge may nevertheless give one?

MR. STANLEY: No, I believe the judge may give -- in fact, if the court -- the court can do whatever it decides to do. As the Chief Justice said in Raddatz and Weber, the magistrate is there to help the District Court in its overburdened case law. It is there to focus the issues. The Court can reject or give whatever weight it wants to to the findings of the magistrate.

QUESTION: Did Judge Conti hear oral argument in this case after the magistrate's report?

MR. STANLEY: No, he did not

QUESTION: So the thing was never set down on the District Court's docket in the sense of being kind cf a petition to review the magistrate's order. You didn't submit anything to the District Court, and he held no bearing.

MR. STANLEY: Well, I will agree with you as far as the timetable is concerned. There was nothing submitted after the magistrate's report. The case was assigned to Judge Conti's docket. I filed the brief with Judge Conti's docket, a 20-page brief that fully outlined our position on the issues of law.

QUESTION: Was this the same brief you gave the magistrate?

MR. STANLEY: Yes, so I mean when I file it it goes to Judge Conti. Judge Conti fills out a little form and sends it to the magistrate. The magistrate sends it back to Judge Conti with the report recommendation.

I would indicate for the record in -- I was responding to Justice Brennan that two of the circuits in this country indicate that where there is no objections, the District Court does not even have to review the magistrate's report. There is nothing more for the District Court to do in the case. It elevates in my opinion a magistrate to a Judge.

I would reserve the rest of my time for rebuttal.

QUESTION: Aren't you going to argue that the statute forbids this, for heaven's sake?

MR. STANLEY: I thought I had, Your Honor, in the Article -- in interpreting --

QUESTION: Well, Article 3 would make the statute irrelevant.

MR. STANLEY: Well, in my opinion the statute says, and right in conjunction, that you may file -- the magistrate is to file a report and recommendations for final decision by the Judge, is what the statute says.

QUESTION: Isn't one of your arguments that the statute on its face and its legislative history forbids this result?

MR. STANLEY: Yes.

QUESTION: All right.

QUESTION: Do you think there is any difference between the magistrate's recommendations on factual findings as opposed to points of law? As I understand your argument, it makes no difference which it is, an issue of law or of fact. There is no waiver in your view.

MR. STANLEY: That's correct. I recognize that four of the circuits have held that a waiver -- that a failure to object waives the right to appeal factual findings but not of legal conclusion;. As Justice Marshall pointed out in his dissent in Raddatz, I believe that Justice Brandeis, and I would agree with him, indicates that in habeas corpus petition you are entitled to review of the facts and the law by a judge, and in my opinion because of the great place that we have for the petition of habeas corpus in our society, and the fact that we are talking about a liberty interest, we really must have a judge, and based upon the statute, which holds that the Judge is the ultimate decisionmaker, the judge must decide everything.

QUESTION: One point. Is your only point the fact that you don't have to file an objection?

MR. STANLEY: Let me make it clear, Justice Marshall.

QUESTION: That is what I am trying to do.

MR. STANLEY: I would dearly have loved to file the objection because then I wouldn't be here having to argue --

QUESTION: Well, that is the only point that is here, isn't it? Do you agree?

MR. STANLEY: Yes. Yes. In my opinion --

QUESTION: You want us to say that the rule of the circuit is wrong.

MR. STANLEY: That's correct.

QUESTION: Unconstitutional.

MR. STANLEY: In my opinion, yes, based upon the decisions --

QUESTION: Well, what part of the constitution does it violate?

MR. STANLEY: It violates due process, and it violates Article 3 by practice of the policy, which is that you do not have -- the District Court --

QUESTION: You mean Five? Which one are you -- which amendment are you talking about?

MR. STANLEY: Amendment Five and Fourteen, Your Honor.

QUESTION: Five and Fourteen. And that denies you due process?

MR. STANLEY: In my opinion, a magistrate -- not having a judge --

QUESTION: Now, what else would you have filed with the Court under an objection more than the 20 pages that you filed?

MR. STANLEY: Nothing. To be honest --

QUESTION: So, what are we complaining about other than that you just don't like filing a piece of paper?

MR. STANLEY: Well, like I said, if I had to do it over again, I would. What I don't -- what we -- where the law stands now is that it elevates a magistrate to something higher than he should he by allowing him to be the final determination of the issue.

The issues were before Judge Conti. He recognized that and he decided them.

QUESTION: You say that you wouldn't file it again?

MR. STANLEY: I said if I had to do it over again I would file them.

QUESTION: Suppose we send it back. Will you file it or not?

MR. STANLEY: You tell me to file them, I will file them. I will file them. If it is going to cure the problem that exists and the reason I am here, I will file them.

QUESTION: I am still trying to find out what is here.

MR. STANLEY: What is here is the question of whether or not the Sixth Circuit's determination in my case that I could not appeal from the District Court order is viable. I say to this Court that my client has the right to appeal to the Sixth Circuit from the denial by the District Court Judge of a petition for habeas corpus. They say that not -- failing to file objections waives that right, and I say that is unconstitutional.

QUESTION: Mr. Stanley, was your failure to file objections intentional or an oversight?

MR. STANLEY: You have to understand, Justice Blackmun, I am an assault practitioner. Up until Friday, when the Circuit Court Judge granted a stay based upon your latest Mitchell versus Wyatt, I was supposed to go back tomorrow to Akron to start a month-long jury trial.

I have to put out my time in each case as best I see it. In this case I had filed a brief. The issues were before the District Court Judge. I felt to file an objection would have been just simply an exercise in futility, that the magistrate considered my petition, my position on the issus, and made his recommendation.

QUESTION: So it was not an oversight.

MR. STANLEY: No, it was simply a matter where I didn't feel that it would add anything to the controversy before Judge Conti by filing objections. I would have simply refiled my brief that I had already filed.

QUESTION: Mr. Stanley, how is conditioning an appeal in these cases on filing of objections any different than conditioning an appeal on the timely filing of a brief or payment of a filing fee or something of that kind?

MR. STANLEY: Well, I think it is different because, Number One, Congress has given a petitioner for a writ of habeas corpus the right to appeal. Number Two, Congress --

QUESTION: Well, even so, can't the courts enforce a requirement filing memos and briefs on timely basis and so forth?

MR. STANLEY: Certainly.

QUESTION: So why not this?

MR. STANLEY: Well, because this is where a Circuit Court is saying, we are not going to let you appeal because you didn't do something in the District Court, namely, file objections. Number One, it goes to statutory construction of Congress's intent, which this Court has repeatedly said Congress's intent is for the District Court to be the ultimate decisionmaker, not the magistrate.

Number Two, the penalty for failure to file objections is quite clear from Congress's intent that you just simply do not get a de novo review. There is no express policy outlined in any of the statutes or any of the legislative history from Congress that they expected a waiver of the right to appeal.

I would say to this Court that where you have a petition for habeas corpus and the right to appeal, that the Circuit Courts cannot limit their own jurisdiction.

As I pointed out to Justice Stevens, you now have a mishmash in the different circuits where in some circuits you can appeal, even though you have a failure to file objections, and in other circuits you can't, and I think that is untenable.

QUESTION: Very well.

Mr. Drake?

ORAL ARGUMENT OF RICHARD DAVID DRAKE, ESQ., ON BEHALF OF THE RESPONDENT

MR. DRAKE: Mr. Chief Justice, and may it please the Court, the issue in this case is whether a Federal Circuit Court may condition appellate review upon the filing of objections to the report and recommendation of a federal magistrate.

QUESTION: Mr. Drake, the way you state the question interests me. You are not contending then that there is a statutory requirement that Circuit Courts take this view.

MR. DRAKE: No.

QUESTION: You are saying it is a matter -- each circuit can adopt its own rule.

MR. DRAKE: Yes, and I am saying the Sixth Circuit has adopted it under its supervisory powers. The rule is --

QUESTION: A permissible rule that is not required by statute.

MR. DRAKE: A rule which is not only permissible, but --

QUESTION: Makes a lot of sense.

MR. DRAKE: Fosters Congressional intent. I don't believe that the Magistrates Act actually speaks directly to this question. The question is whether the Sixth Circuit may do this, not whether it is compelled to do so.

QUESTION: And therefore it also follows, I guess, that it is not a jurisdictional rule.

MR. DRAKE: It is definitely act a jurisdictional rule.

QUESTION: Because they didn't make it retroactive, so obviously they thought they had jurisdiction to go either way.

MR. DRAKE: They made it prospective only to accommodate what I feel they perceive to be potential due process difficulties.

QUESTION: Do you think that -- is their rule limited to the cases where the defendant gives notice?

MR. DRAKE: Absolutely.

QUESTION: And is that your position also?

MR. DRAKE: Yes.

QUESTION: That if he doesn't get notice, there can be no waiver?

MR. DRAKE: The rule was promulgated in a case, United States versus Waltars, which is cited in the brief. The rule was not even utilized in that case. It was made prospective only from the date of that decision.

QUESTION: Then it is -- you don't push for any wider waiver rule.

MR. DRAKE: No. No, Your Honor. I don't believe the statute compels it perforce, no.

QUESTION: So you -- I take it the answer to Justice Stevens that other circuits could have just the contrary rule.

MR. DRAKE: The circuits could in their wisdom, I believe, though, if you look to the Congressional intent underlying the Magistrates Act, a circuit who declines to adopt the Sixth Circuit rule is essentially for reasons unknown to me fostering upon itself review de novo.

QUESTION: But it would be permissible, you are saying.

MR. DRAKE: It would be permissible.

QUESTION: You don't urge us then to try to make the rule uniform or not?

MR. DRAKE: I think that if affirmance is given in this case, we might have more circuits adopting this rule in their own self-interest. As I pointed out in the brief, the difficulty is not uniform to all the circuits. For instance, the District of Columbia Circuit apparently has very little difficulty, if you look at the statistics, whereas the Fourth, Fifth, Sixth, and now the Eleventh Circuits are having considerable difficulty.

QUESTION: At least there is a question as to whether this was a proper exercise of the supervisory power.

MR. DRAKE: I believe that is the only question before the Court.

QUESTION: And Congress did indicate what a penalty for failure to file was, or is.

MR. DRAKE: As to the District Court, yes.

QUESTION: Why should a court impose a further penalty for failure to file?

MR. DRAKE; Because the purpose underlying the Magistrates Act -- and it had had a checkered history. The original 1968 version encountered a series cf adverse judicial decisions, including ones from this Court, and it was in response to your invitation and that of the Chief Justice that the 1976 amendments were actually enacted.

The theory underlying the 1976 amendments very much parallels the master system user in the United Kingdom or the referee system used in most states today, which is to use non-Article 8 jurists, here magistrates, to delineate the scope of the dispute. Oftimes you will have in a civil case a multi-count complaint filed. The magistrate might recommend summary judgment as to let's say 18 of those, and the litigant will then have -- essentially the magistrate will serve as a filtration system, where the litigant will then make an intelligent judgment as to whether or not he wants to proceed. That is the entire theory underlying this, that the magistrates will filter this litigation in the nondispositive context. The review is under the clearly erroneous standard. In the dispositive context, as I said, the Magistrates Act did not fare well in the Courts.

They were very, very aware of Article 3 difficulties, and they made it absolutely clear that if the litigants so desire, he could obtain, he had the opportunity to obtain review anew, but he could forfeit that opportunity. This case is tantamount in my opinion strictly to a failure to prosecute or any other procedural default.

QUESTION: Suppose the 20-page paper that he filed, suppose the first page of it said I object for the following reasons.

MR. DRAKE: In other words, you are saying, suppose the objections would have been filed, Your Honor?

QUESTION: Suppose he said, "I object for the following reasons." That is all he put on the top of the 20-page thing he filed. Would that he satisfactory?

MR. DRAKE: You mean initially, when he initiated this litigation, Your Honor?

QUESTION: Yes.

MR. DRAKE: No, Your Honor, I don't.

QUESTION: Didn't he file something with the District Court?

MR. DRAKE: Your Honor, I think there is a misstatement or misunderstanding here. After the magistrate issued the report and recommendation, the only thing he filed was a motion for extension of time. He never refiled anything in the District Court, anything of any --

QUESTION: What is this 20-page thing he is talking about?

MR. DRAKE: When he essentially filled out the form, the habeas corpus form, which is provided for in the rules, and he also attached thereto a brief reiterating the claims he has made in the state courts --

QUESTION: You mean, that was a filing before the magistrate.

MR. DRAKE: That was referred to the magistrate, yes.

QUESTION: That was referred to the magistrate.

MR. DRAKE: Yes, and considered by the magistrate in conjunction with briefs filed by the state of Ohio and a very voluminous transcript.

QUESTION: What did he file with the District Court?

MR. DRAKE: With the clerk's office, when he initiated this action --

QUESTION: Well, I -- the District Court means clerk's office.

MR. DRAKE: Right, he filed the petition and a brief in conjunction therewith. That is all he ever filed except for the motion for extension of time --

QUESTION: And after the magistrate ruled, he didn't file anything else.

MR. DRAKE: Except for a motion for extension of time, he filed nothing.

QUESTION: He filed nothing.

MR. DRAKE: Nothing. Surprising, he didn't even file a 59E motion to alter or amend judgment, which probably would have avoided this question also, at least many circuits have held. It wasn't too late even when the judgment was issued, in my opinion, but --

QUESTION: Why wouldn't it be too late, then? Under the Sixth Circuit rule, it seems to me if you don't file --

MR. DRAKE: The Sixth Circuit has never really addressed the issue.

QUESTION: As far as we know, the Sixth Circuit rule seems to be an inflexible rule. If you don't file objections --

MR. DRAKE: No, Your Honor. -- First of all, the Sixth Circuit rule is not inflexible at all. As I pointed out in the brief, there was a pro se litigant, and the Sixth Circuit found in that instance that there was cause for the failure to -- the procedural default, and wanted to avoid a manifest injustice.

The rule is not inflexible, and we are not talking about jurists who are unreasonable.

QUESTION: Let me just go back for a second to Justice Marshall's -- I'm sorry -- question. If after the magistrate's ruling, your opponent had filed a piece of paper which said I object to the magistrate's rulings for the reasons stated in the memorandum I filed originally, period, that would have been enough, wouldn't it?

MR. DRAKE: The Sixth Circuit has never addressed it. What you are talking about -- in any published decision, in any event. What you are talking about is the pro forma blanket objection. I don't know. I can't answer your question. I don't know if they would hold an attorney at law --

QUESTION: Well, that wouldn't even be pro forma, because they would have filed -- you would have spelled out his argument. Well, I see what your point is.

MR. DRAKE: I think that in the case of a pro se applicant, that would be sufficient. He is doing the best he can. Here we are talking about someone who is admitted to the bar, and in point of fact Mr. Stanley had filed four claims. When he went to the Sixth Circuit, he abandoned three of those. Here we have a District Judge who sui sponte took it upon himself to unnecessarily waste time on three claims which obviously he had intended to abandon anyway. The Act would have worked in this insurance.

He would have filed objections in theory on only one of the four claims, and Judge Conti, who at that time had been elevated to the Circuit Court, would not have had to deal with 75 percent of this litigation, Your Honor, and that is what the Sixth Circuit is trying to do, not take away someone's right to appeal, but merely mandate that they perfect that right to appeal, and not -- here we have not only a failure to file objections, but in the Sixth Circuit Mr. Stanley did not so much as file a reply brief indicating why he hadn't filed the objections. Even though our brief dealt at length and initially with this question, Mr. Stanley did not appear at the oral argument.

The Circuit Court below had neither written nor oral explanation as to why these objections were not filed.

QUESTION: Mr. Drake, what about a situation when the District Court sui sponte alters the finding or recommendation of the magistrate on, for example, a point of law, and no objections had been filled in a timely basis, but the District Court on its own reaches some legal conclusion different from the magistrate's recommendation. Would there have to be a right to appeal from that?

MR. DRAKE: For instance, Your Honor, you are indicating perhaps Judge Conti would have granted the writ as to one of these claims?

QUESTION: Yes.

MR. DRAKE: Had Judge Conti granted the writ as to one of these claims, and I here have to speculate to some degree, because it has never really arisen in the Sixth Circuit, but it would be my judgment the state of Ohio could appeal, that Mr. Stanely could appeal raising as the sole ground for affirmance that relied upon in the District Court, and could neither file cross appeal nor could he rely upon the other three grounds that were not considered by Judge Conti. I think that would be the logical extension of what the Sixth Circuit states.

QUESTION: And if a circuit nevertheless tried to apply the waiver rule, would there be anything in the statutory scheme or the Constitution to prevent it?

MR. DRAKE: If the Sixth Circuit in the case where the writ is granted --

QUESTION: Yes.

MR. DRAKE: -- tried to --

QUESTION: Enforce a waiver.

MR. DRAKE: I can't imagine myself ever making that argument, and I don't think the Sixth Circuit could do that.

QUESTION: Well, is there anything in the statutes or the Constitution that would prohibit a circuit from having so stringent a rule of waiver?

MR. DRAKE: Would prohibit it? Nothing would come to mind except for a general concept of fairness, Your Honor. I can't imagine a Circuit Court ever doing that. I am unaware of any remotely analogous situation.

QUESTION: How specific do you think the notice must be?

Mr. DRAKE: I think it --

QUESTION: Here it was quite specific --

MR. DRAKE: I think the notice --

QUESTION: -- but what if it weren't? What if it were a general notice?

MR. DRAKE: I think that--

QUESTION: That you might lose your right to appeal?

MR. DRAKE: Some Circuit Courts have had difficulty with this, and I think that the Sixth Circuit has taken the wiser course and mandated the notice be so specific that any child who really can read or write at all could understand that notice. Here we are talking about some people that are in prison but aren't that educated, and I am certain that if you can read at all you understand what that notice means. It is not ambivalent or ambiguous to any extent whatsoever, and I think Mr. Stanley's contrary assertion is sheer sophistry, Your Honor. That is a very explicit notice. And it is even in capital letters, as you can see at Page 50 of the joint appendix.

QUESTION: Well, if there were no notice, or if the rule did not allow an appeal in the other circumstance, I suggest, does that raise due process concerns then, in your view?

MR. DRAKE: If there were no notice? Yes. For instance, in the United States versus Walters itself bad the Sixth Circuit promulgated a supervisory, and in that case it would have taken away the right, the government's right to appeal, as it turns out, but had it gone the other way, I do see due process concerns. I think that notice is absolutely essential.

QUESTION: So far as notice, do you think that each individual attorney has to be advised by the government or by somebody, by the Court of their right to appeal from a judgment of the District Court to the Court of Appeals?

MR. DRAKE: No, Your Honor. For instance, had there been a rule, any rule of appellate procedure is not obviously incorporated in every order of a Court. Attorneys are deemed to be on notice, and are to some degree pro se litigants, are deemed to be on notice of rules that are long standing.

This Court doesn't for instance, send me rules of practice every time I come here, but I think that the rule -- it is the wiser course, because we are --

QUESTION: I thought you were saying it was constitutionally --

MR. DRAKE: I think notice is constitutionally mandated, the fact that you actually put it in every pleading, which is what happens in the Sixth Circuit. Every report and recommendation --

QUESTION: Yes, but I thought your answer to Justice O'Connor's question was, if there weren't that sort of notice, there would be real constitutional implications. I wonder how you score that with the fact that nobody gets any notice other than reading the statute of their right to appeal from the District Court to the Court of Appeals.

MR. DRAKE: Your Honor, I meant that for instance if a Circuit Court came up with some supervisory rule that took litigants by surprise and made it retroactive to appeals which were pending, I would have some difficulty --

QUESTION: You are talking about kind of a judge-made rule.

MR. DRAKE: Right, which is what we have here, is essentially a rule which the Sixth Circuit perceives, and I agree, is very congruent with the intents underlying the Magistrates Act. You simply cannot have your Article 3 District Judge being bypassed and, sandbagged.

The idea is to serve as some sort of filtration system. Congress certainly did not mean to aid Article 3 District Judges and to the detriment of Article 3 Circuit Court judges.

QUESTION: But of course Judge Conti doesn't seem to have taken advantage of the latitude which you say Congress gave him.

MR. DRAKE: He did not take full advantage of the latitude which Congress gave him. Perhaps that might -- I have no idea why Judge Conti did what he did. It certainly was not incumbent upon him to do so.

QUESTION: Maybe he enjoys reviewing magistrates' decisions.

MR. DRAKE: I honestly do not know, obviously, Your Honor, why he did what he did.

QUESTION: Well, you certainly wouldn't need to reach any constitutional argument if notice weren't provided by the court rule. All you would have to say or hold here is that it was an improvident exercise of his supervisory power not to require noticed. You wouldn't have to reach any constitutional issue.

MR. DRAKE: I would agree. Here notice, express notice was given, Your Honor. Mr. Stanley acknowledges that he got the notice. The fact that he filed the motion for extension of time, which was granted, is indicative of that fact.

There is no dispute that -- the only dispute is his belated misinterpretation of what that fairly plain language meant, Your Honor. But once again, I would point out that we are here dealing with a court who has decided to exercise its supervisory power.

Reversal can only obtain if that supervisory power is repugnant either to the Constitution or statute. Mr. Stanley has pointed out no repugnancy that I can ascertain. He simply disagrees with the wisdom of the supervisory rule.

Here I believe that, and I believe the statistics indicate that there should be some latitude here for the various circuits to operate in the manner that they wish to operate absent some repugnancy to an overriding statute or the Constitution. And no one has said that this rule is mandated nationwide.

Some circuits, particularly the Eighth Circuit, obviously doesn't perceive the need to have such a rule. If they want to allow District Judges to be bypassed, Congress has indicated that they can do so, I believe.

I believe that if the court below is affirmed, perhaps Circuit Courts will feel a little more latitude and be a little more receptive to the Sixth Circuit rule.

I believe, though, if the court below is affirmed, perhaps Circuit Courts will feel a little more latitude and be a little more receptive to the Sixth Circuit rule.

What Mr. Stanley is attempting to do is relieve himself of the obligation as an officer of the Court to apprise the Court of the fact that he is dissatisfied with a portion of the magistrate's report or, for that matter, the whole thing, and he is putting the onus on the judiciary to do his job. This is precisely what the Circuit Court said we are not going to allow this to happen.

This is no different than any other legitimate procedural requisite. It is just that Congress said to file the brief, to file a timely notice of appeal, to appear at a pretrial conference, to give discovery. Essentially what we have here is a failure to prosecute, and we have a totally unexcused failure to prosecute. I have no idea --

QUESTION: May I ask -- may I interrupt for just a second?

MR. DRAKE: Yes, Your Honor.

QUESTION: Is it your view or the view in the Sixth Circuit that a District Judge acts improperly if when there are nc objections to the magistrate's report or file the District Judge decides on his own initiative to review the whole report and decide whether he agrees or disagrees with it?

MR. DRAKE: I don't know what the Sixth Circuit view on that would be, Your Honor. What Judge Conti did in this case is highly unusual, though, as a matter of common practice.

QUESTION: The force, the effect of the rule as I understand it, though, really doesn't have anything to do with what the District Judge may do. He can still either review or not review his own election.

MR. DRAKE: Yes.

QUESTION: Which is what Congress seemed to be thinking about mostly. The whole force of this rule is to protect the Court of Appeals --

MR. DRAKE: That's right.

QUESTION: -- as I understand it from reviewing cases where there was a procedural default before the magistrate, and it is irrelevant what the District Court does.

MR. DRAKE: That's correct, Your Honor.

QUESTION: Even if the District Court writes a great long opinion, they will say we won't bother reading the opinion because of the failure at the magistrate level.

MR. DRAKE: I don't believe that they would say in each and every instance some inflexible --

QUESTION: Well, the general rule would be --

MR. DRAKE: Yes.

QUESTION: But this rule does nothing to protect the District Judge, as I understand it.

MR. DRAKE: The District Judge is -- in point of fact what really happens is the District Judge ordinarily does not do what Judge Conti did here. Put the rule is not designed to protect him. I doubt if it could.

QUESTION: But the judge is free to do it if he has a new magistrate, he is not confident, or something, he could --

MR. DRAKE: If the Judge, for instance, got a new group of law clerks and wants to let them practice, he wants to review these magistrate reports, he certainly is privileged to do so, and I would have great problems if the Circuit Court told him he couldn't do that.

QUESTION: The only time the judge is really required to give de novo review is if there is an objection.

MR. DRAKE: Yes.

QUESTION: And if the objection only runs -- goes to part of the report, that is all he has to give de novo review of.

MR. DRAKE: Which -- and this is a classic case, Your Honor. There is only one complaint before this Court on the merits, and there were four originally. Presumably Mr. Stanley would have objected only as to this battered wife syndrome question, abandoned the other three claims, with a considerable savings of time in the long run to judges like Judge Conti.

The judges should not be presumed to be forced or compelled to do what Mr. Stanley wants when the litigants are not before him complaining.

QUESTION: May I interrupt once more? If I understand your position correctly, say there is -- the District Judge thought there was merit to one of the four claims to which no objection had been made. The District Judge would have the power to grant relief.

MR. DRAKE: Yes.

QUESTION: But the Court of Appeals would not. If the District Judge denied relief, the failure to object would deny the Court of Appeals the power to grant relief, if they enforce this rule just automatically.

MR. DRAKE: Once again, Your Honor, I don't believe it has been erected as an inflexible jurisdiction.

QUESTION: I understand, but as a general rule, the Court of Appeals said, we don't have to look at this appeal because there is this failure here. Affirm. Whereas the District Judge doesn't have to.

MR. DRAKE: You might well have a proffer here that Mr. Stanley was in the hospital, that he was ill.

QUESTION: The District Judge just might have been extremely conscientious and decided he wants to take a good, hard look at it, but the Court of Appeals would just say we don't have jurisdiction because they didn't follow this rule.

MR. DRAKE: Absent at least a proffer of cause and an indication of -- you might even have, at last in the judgment of one of the judges below, some indication of manifest injustice, because he thought there was some merit. I disagree with him as to that point, but it is the two prongs. Here there was not so much as a proffer. Your Honor, the motion for rehearing which was the first instance --

QUESTION: No, but there was a proffer in the Court of Appeals, because in the Court of Appeals they said, look, there is a meritorious point here, and the Court of Appeals said, we are not going to listen to your argument because you have failed to object before the magistrate.

MR. DRAKE: But there was -- Mr. Stanley never gave a proffer as to why he failed to do this.

QUESTION: Well, he didn't explain his failure to object. I understand that.

MR. DRAKE: In a motion for rehearing, Your Honor, he said, ant I am quoting, "Counsel is the one who screwed up." That is as quote, and he did not elaborate.

Your Honor, that does not -- that does-not to me equate with cause here. I mean, this entire case is to alleviate one individual in a habeas corpus action from exercising his duties as an officer of the court, and we are at the United States Supreme Court. This is not a onerous burden put on counsel, Your Honor, in my opinion, and particularly --

QUESTION: Nobody is suggesting it is. The point is, what is the power of the Court of Appeals when this set of facts develops? The District Court is free to look at it, as I understand; the Court of Appeals is not, as a normal practice.

MR. DRAKE: I don't think that the Court of Appeals is saying that the District Court can't look at it, Your Honor, if I understand your question. They are saying that in what we consider to be this sort of a sandbagging scenario, we will not transfer ourselves into essentially the first Article 3 court that reviews the substance of these claims.

And as my brief points out, the circuits which have adopted this rule are the circuits which are inundated with precisely these kinds of cases, because certain circuits -- for instance, the District of Columbia doesn't have that many prisoner petitions, I presuppose, at least according to the statistics, whereas the Fifth, the Eleventh, the Fourth and the Sixth do.

And again, I am not asking for some nationwide rule of uniformity. I am simply making the point that I believe the Sixth Circuit has taken the wiser course. And even if it is not the wiser course, it is nor one that is repugnant to the statute or the United States Constitution.

QUESTION: Well, Mr. Drake, the Sixth Circuit, as I understood it, acknowledged that it had jurisdiction of an appeal, but it dismissed it for failure to make the objection below, just as it might refuse to entertain an appeal on other issues that aren't raised below.

MR. DRAKE: Your Honor, procedural default seems to --

QUESTION: Isn't that right?

MR. DRAKE: Yes. As a matter of fact, Engel versus Isaac arouse out of the Sixth Circuit. They had jurisdiction to hear those claims, but because of the preprocedural default, they were not -- they could not do it essentially. It is not the power to review here. We are talking about the supervisory rule, which was only given after this express notice, and the rarity of these cases is demonstrated by this case, I believe. I mean, you do not see a flood of instance where the Sixth Circuit has to invoke this rule even against pro se litigants, and as I have indicated, it is not an inflexible barrier, jurisdictional or otherwise, because they have at least in one reported decision granted leave to review those merits when there was a proffer of cause and a feeling that there had been an injustice by the magistrate's ruling, Your Honor.

Are there any further questions?

CHIEF JUSTICE BURGER: Very well.

MR. DRAKE: Thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Stanley?

ORAL ARGUMENT OF CHRISTOPHER DANAHY STANLEY, ESQ., ON BEHALF OF THE PETITIONER - REBUTTAL

MR. STANLEY: Very briefly. First of all, with regard to Justice O'Connor's statements, this, the Sixth Circuit's rule is not a procedural default rule. There is only one circuit, the Fourth Circuit, that would cause a procedural default. The Attorney General may be trying to translate it into that. The Sixth Circuit says, under a supervisory power, you have to file objections or you waive your right to appeal. If there is procedural default, there will be an order of the court, and then that should apply presumably around the country. Here we have, if you are going to talk procedural default, in four the circuits, it doesn't matter, and in two of the circuits it does. That doesn't make any sense. Justice Marshall in your question.

QUESTION: But you don't say it is a jurisdictional rule, do you?

MR. STANLEY: In my opinion, form over substance, it is a jurisdictional rule. You cannot appeal because you didn't file objections. It is not procedural default. It is a jurisdictional rule. It is a jurisdictional prerequisite, is the way the Sixth Circuit put it in one of its unpublished opinions. And in talking about the differences between the magistrate and the judge, the judge has the case from the beginning. He never loses jurisdiction over it. It doesn't go from the judge to the magistrate, and that somehow they are two different people. The magistrate is working under the judge. The judge has the ultimate determination.

The brief that was filed, presented, that is what we are talking about in this case. Were the issues, gut reaction, were the issues before the trial judge, before the District Court? Yes, they were. I filed a memorandum, extensive memorandum of law. This case has been argued extensively and briefed extensively between -- and this is the sixth court I have been to for relief from my client.

Now, there simply cannot be a waiver construed from that. As I said before, I am sorry I didn't file the objections, because then we wouldn't have to be here, out the fact of the matter is, the issues were before the District Court, and the District Court made the de novo determination. Congress has given us the right to appeal from a denial of habeas corpus, and the Sixth Circuit in their role is trying to take away that right, which I don't think it has anything to do with.

QUESTION: Mr. Stanley, did you address the waiver issue before the Court of Appeals?

MR. STANLEY: No, it was never addressed, and I might say that I was ill on the day of oral argument, and after consultation with his predecessor from the Attorney General has agreed that we could waive oral argument.

QUESTION: Well, you did not raise the -- issue in your brief.

MR. STANLEY: I didn't. They did. There was never any reply brief filed.

QUESTION: You filed no reply brief.

MR. STANLEY: No.

QUESTION: And you agreed not to argue the case orally.

MR. STANLEY: Because I was sick on that day.

QUESTION: CA Six never heard this argument.

MR. STANLEY: Pardon?

QUESTION: The Court of Appeals never heard this argument.

MR. STANLEY: I filed the petition then for rehearing making this argument, and they denied it, and that is what bring us to this Court.

QUESTION: The petition for rehearing?

MR. STANLEY: Yes, petition for rehearing from their denial.

Thank you.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 10:57 a.m., the case in the above-entitled matter was submitted.)