The case of the day is In re Application of Mesa Power Group, LLC (D.N.J. 2013), the third installment in the case that we have considered.1 The new decision takes a view on some non-trivial issues (notably, it holds that a NAFTA arbitration is a proceeding before a foreign or international tribunal for purposes of § 1782). But I don’t want to look at these issues. Instead, I want to use the case to consider a point that was raised by S.I. Strong in a new paper that I hope to have more for you about in the next short while:2 this decision, like many § 1782 decisions, was rendered by a magistrate judge on an ex parte application. Is that constitutional?
The statutory background for the authority of magistrate judges
By way of background for non-US readers: under Article III, § 1 of the Constitution, the judicial power of the United States is vested in the Supreme Court and in inferior courts created by Congress, and the judges of those courts “shall hold their offices during good behaviour.” In other words, judges are appointed for life and may be removed from office only by impeachment and conviction. Under 28 U.S.C. § 631(a), the judges of each district court “shall appoint United States magistrate judges in such numbers and to serve as such locations within the judicial districts as the Judicial Conference may determine [ellipsis].” A magistrate judge is not a judge for constitutional purposes because, under § 631(e), the term of office for a magistrate judge is eight years.
Under § 636(b)(1)(A), a judge may designate a magistrate judge to hear and determine “any pretrial matter pending before the court,” with exceptions for dispositive motions (for example, motions for summary judgment or for judgment on the pleadings, or motions to dismiss). When the judge makes such a designation, the statute gives the judge the power to reconsider the magistrate judge’s decision “where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” Under FRCP 72(a), the judge may review the magistrate judge’s decision only on written objection by a dissatisfied party.
On the other hand, under § 636(b), a judge may also designate a magistrate judge to hear and determine dispositive motions. But in that case, the magistrate judge does not actually decide the motion. Instead, he or she submits “proposed findings of fact and recommendations for the disposition, by a judge of the court,” of the motion. Under the statute, the judge reviews the proposed findings and recommendations de novo if any party objects. That is, the magistrate judge’s decision gets much less deference if the matter at issue is a dispositive motion rather than another pretrial matter.
There is another statutory mechanism, § 636(c), which permits a magistrate judge to decide cases in their entirety as though he or she were a judge, but only with the consent of the parties. This mechanism is obviously not applicable in the usual § 1782 case, which is heard and decided ex parte.
Today’s case of the day illustrates the question I want to consider perfectly. Magistrate Judge Waldor decided the § 1782 application outright, rather than making a report and recommendation to the judge. If her handling of the case is correct, then if the the target of the subpoena wants to challenge her decision, it is entitled to relief only if her decision was clearly erroneous—a standard of review that is pretty deferential to the magistrate judge. But if if the magistrate judge got it wrong, then the target would be entitled to relief if the magistrate judge erred, whether or not the decision was clearly erroneous. This issue is of constitutional dimensions because the target has a right to have dispositive issues adjudicated by a judge.
There is relatively little precedent on this question. The best summary of the split of authority on the question seems to be from Judge Gonzalez’s decision in In re Application of Chevron Corp., 2010 WL 3584520 (S.D. Cal. 2010):
Courts disagree over whether a motion under 28 U.S.C. § 1782 is a dispositive matter requiring the magistrate judge to issue a report and recommendation. See Four Pillars Enterprises Co., Ltd. v. Avery Dennison Corp., 308 F.3d 1075, 1078 (9th Cir. 2002) (Taiwanese company’s application for assistance in conducting discovery in a foreign proceeding under § 1782 was referred to a magistrate judge as a non-case-dispositive discovery matter, and the appellate court reviewed the magistrate judge’s rulings under abuse of discretion standard without discussing issue of magistrate judge’s authority); In re Clerici, 481 F.3d 1324, 1331 (11th Cir. 2007) (standard of review for discovery ordered under § 1782 “is identical to that used in reviewing the district court’s ordinary discovery rulings”); but see Phillips v. Beierwaltes, 466 F.3d 1217, 1221–22 (10th Cir. 2006) (questioning whether motions for discovery in aid of foreign litigation under § 1782 could be characterized as non-dispositive matters); Wright & Miller, 12 Fed. Prac. & Proc. Civ. § 3068.3 (2d ed.) (noting that although discovery disputes generally are viewed as non-dispositive, motions under § 1782 are dispositive matters).
Professor Strong seems inclined to the view that a § 1782 application is a dispositive matter that a magistrate judge lacks the power to decide:
Indeed, there are serious questions about whether and to what extent magistrate judges can or should be involved in decisions (such as Section 1782 determinations) that have the potential to affect foreign affairs. Given that “legal inconsistencies in the area of investment arbitration affect foreign investment decisions, economic development, and foreign relations,” U.S. district judges should be hesitant about allowing Section 1782 requests to be heard by magistrate judges.
As an empirical matter, I am not sure if there is reason to think that magistrate judges are more likely than judges to get these decisions wrong, so I am not sure that I agree that there is a real-world difference that justifies Strong’s view. The alienage jurisdiction provided in the Constitution and by statute (the federal courts have jurisdiction of claims brought by or against an alien provided the amount at stake is large enough, and provided certain technical requirements are met) is said to be justified on grounds of the Framers’ distrust of the state courts as forums where foreigners would get a fair shake; but is there a similar problem when we are comparing Article III judges with magistrate judges?
But I also wonder about the notion that there really are foreign relations concerns at stake in § 1782 cases that should give us pause. It seems to me that the really dicey foreign relations issues arise in US litigation when a party seeks to compel discovery from a foreign party under the FRCP rather than via the Hague Evidence Convention or a traditional letter rogatory. In those cases, it seems to me there is no question about a magistrate judge’s authority, for example, to issue an order that applies the Aerospatiale test and compels discovery from a foreign party, and such an order would receive only clear error review. Why, then, should we think that special considerations apply in § 1782 cases, where the US courts are not doing any of the things that get foreign states riled up (exercising extraterritorial jurisdiction, ignoring blocking statutes and data protection laws, etc.), but rather trying to aid proceedings taking place abroad?3 A foreign sovereign could reasonably argue that forcing it to respond to a discovery request, or forcing a person in its territory to respond to discovery, would offend its sovereignty. But is it reasonable for a foreign sovereign to argue that forcing a person in the United States to provide discovery offends its sovereignty, merely because it is a party to the litigation (as in an investment treaty arbitration), or merely because the underlying arbitration has its seat in the foreign sovereign’s territory? Moreover, if the foreign or international tribunal does not want the parties before it to seek discovery in the US, it can issue appropriate orders, and in the face of such an order it seems highly unlikely that under Intel a US court, whether a judge or a magistrate judge is presiding, would grant a § 1782 application.
On the other hand, there are some formal reasons for viewing a decision on a § 1782 application as dispositive. Unlike cases where courts undertake an Aerospatiale analysis, in § 1782 cases the decision on discovery is the entirety of the US proceeding. I can’t say I’ve really studied the precedents on this nationwide, but at least here in Massachusetts there are decisions holding, in the domestic context (e.g., a proceeding to enforce a subpoena) that the issue is dispositive because it is the only issue before the court, and therefore that a magistrate must make a report and recommendation subject to de novo review. See In re Dept. of Justice Subpoenas to ABC, 263 F.R.D. 66 (D. Mass. 2009); In re Administrative Subpoena to Blue Cross Blue Shield of Massachusetts, Inc., 400 F. Supp. 2d 386 (D. Mass. 2005).
I am not suggesting an answer to this interesting question, but I’m certainly going to keep my eyes open for it.
- The earlier posts are here and here.
- I’d like to thank Professor Strong for her generosity in reading and commenting on a draft of this post before publication.
- I could see the point more clearly if we were concerned that magistrate judges were too stingy, providing foreign or international tribunals with too little assistance, but I don’t think anyone has suggested that!