In Re United States of America

ruled, I. Both also of Title provisions cable

however, provisions could be en- that those In re UNITED STATES under 1983. See by an action America, forced Petitioner. McGuire, 111-12; Ryans, F.Supp. at No. Docket 93-3074. con- We reach the same F.Supp. at 846-49.

clusion. Appeals, United States Court of Second Circuit. Legislative History 3. Argued Sept. 1993. subsequent legislative his- A review of the Decided Nov. tory supports our conclu- of the statute also I Congress amended Title sion. In Secretary of Education

remove review concerning the state director’s decisions I and the for-

eligibility for Title assistance IWRPs. Rehabilitation

mulation Pub.L. No.

Amendments (codified 203(b), 100 Stat. 1815-17 722(b)(2)). After

amended at 29 U.S.C. provision,

noting repeal of this the House “Nothing in the Report states:

Conference agreement prohibits individu-

conference private right action.” pursuing

al from

H.R.Conf.Rep. 2d (1986), reprinted in 1986 U.S.C.C.A.N. congressional 3528. The state- stemming griev- from

ment referred to suits might an individual have with state

ances ineligibility Ti-

agency’s determination of for

tle I assistance or with the formulation

particular The claim in this action is IWRP. policy prohibiting reim-

that VESID’s “factory-installed” options is a

bursement 721(a)(8) (a)(9).

violation of & Such squarely

claim falls within the traditional judicial competence

realm of and is even appropriate un-

more for court determination referred

der 1983 than is the kind of suit Report. the Conference

CONCLUSION reasons, Judgment foregoing

For the court is vacated and case is

remanded for consideration the district grounds appellees’ mo-

court of the other complaint.

tion to dismiss the FEINBERG,

Before: CARDAMONE and ALTIMARI, Judges. Circuit FEINBERG, Judge: Circuit petitions under the All The United States and Rule Writs Appellate the Federal Rules of Procedure for a writ of mandamus to the United States District Court for the Eastern District of Korman, York, peti- The New Edward J. R. requests a determination of the authori- tion ty delegate court to to a federal of district magistrate judge power appli- to review enforcement officials for or- cations law authorizing eavesdropping ders electronic pursuant to Title III of the Omnibus Crime Act of Control and Safe Streets (Title III). peti- §§ 2510-2521 The alternative, requests, in the an order tion directing respondent Judge Korman to re- applications personally. view such For the below, grant we reasons set forth mandamus respondent Judge and order Korman not to delegate applications of Title III review magistrate judges per- and to review federal sonally application pending. an now Background I. February respondent Judge Kor- serving man in the Miscellaneous Part of court, responsible the district where he was applications for for the review of Title By opinion an and order dated Feb- orders. ruary respondent announced his intention to refer all such magistrate judges. United States re Attorney, F.Supp. United States (E.D.N.Y.1992). request At however, States, Judge Korman United stayed implementation of order until his Oc- signed pending the then tober application of the United States of New for the Eastern District petitioned then York. United States Frey, Washington, (Mayer, Andrew DC Judge this court for mandamus review of counsel), Platt, respondent. for Brown & peti- This court denied the Korman’s order. 23,1993. Poliak, Upon Cheryl Atty., tion in an order dated March L. Asst. U.S. clarification, Carter, Atty., motion for (Zachary E.D.N.Y. the United States’ W. E.D.N.Y., on 1993 to Norling, Atty., the order was modified June Peter A. Asst.,U.S. counsel), no petition that the was denied because petitioner. state respondent expected in the Miscellaneous Part. to serve 1. This was the next date on strong ment resources. Petitioner thus has a been referred application had ensuring admissibility interest in of evi- trate. gathers by dence electronic surveillance. Judge Korman referred On June Suppression ground on the that surveillance At- the United States another by an was authorized invalid Title III order judge. The torney magistrate to a United significant govern- would result in a waste of review of this seeks mandamus States now Furthermore, govern- ment resources. the accepted from the This court briefs order. parens patriae ment as has an interest argument.2 oral parties and heard avoiding illegal priva- invasions of its citizens’ cy. Availability II. of Mandamus Moreover, proce- because unusual 23, 1993, of March This court’s order posture proceeding, petitioner dural of this petitioner’s denied modified June adequate remedy. petitioner has no other If petition there was earlier mandamus because legal is unable to obtain of the basic review application pending then before a wiretap no now, presumably pending issue either the magistrate judge. Because such an order is or another one referred Title ripe the issue has become for pending, now by respondent magistrate in the future review. approved magistrate peti- will be proceed investiga- tioner will with a criminal extraordinary Mandamus is an results, defendant, tion. If an the indictment grant lightly: remedy that this court does not course, right would have the to move to (1) petitioner presence show the must suppress any through evidence obtained law; question significant of a novel wiretap. placed in Petitioner would then be inadequacy of other available reme- [2] the impossible agreeing situation of either (3) dies; presence legal issue was not with defendant will aid in the administra- whose resolution properly taking legal posi- or of authorized justice. tion of tion that it believes is incorrect. Cf. In re (2d States, F.2d In re 89 United States, United 903 F.2d 88. 1990) Bulow, (citing In re F.2d Cir. Von Finally, resolution of this issue will (2d Cir.1987)). find that the 97-100 We justice. aid in the Manda administration petition by the United meets these States appropriate appellate “when the court mus is stringent criteria. important, is convinced that resolution of an First, presents a the case novel and forestall future error in undecided issue will significant Respondent appears to be issue. courts, uncertainty and trial eliminate add circuit, only if in the this importantly to the efficient administration of nation, delegate review of Title III Bulow, justice.” In re Von 828 F.2d at 99 magistrate judge. As for orders to federal Gasch, Times, Inc. (quoting Colonial recognized significance, this court has (D.C.Cir.1975)). case, In this F.2d authority scope Magistrate’s is a “the uncertainty eliminate as to mandamus will litiga criminal significant issue federal review, delegation of Title III thus avoid States, at 89. tion.” In re United 903 F.2d wiretapping ing challenges future orders Moreover, disposition judges, approved by magistrate which wiretapping implicates orders serious issues require suppression retrial or the of evi privacy the Fourth Amendment. under dence. Second, petitioner has no alternative III. Merits effectively protecting capable remedies its now to the merits of the case. Electronic surveillance We turn substantial interests. judges may delegate the major investigations involves criminal and re Whether of Title III orders to quires significant expenditure govern- review upon fully parties and relied those briefs. at the resubmitted 2. Because the issues were briefed mandamus, prior application for time of the intercepted requirements notice congres- well as ultimately upon the depends (d). 2518(8)(a), (b), Vi- parties. 18 U.S.C. III and in the expressed intent sional seq. §§ et are of 18 No. 90- olations U.S.C. Pub.L. Magistrates3 Federal (codified up by imprisonment of to five punishable as amended 82 Stat. $10,000. 631-639). issue, years and a fine of analyzing this §§ 2511(4)(a), relevant, highly however, another statute be seen below.4 as will Magistrates Act was enacted The Federal during same session October n Relevant statutes A. III. The stat- Congress enacted Title com- replaced the office of United States Title III in ute enacted The 90th magistrate and with that of federal requires law en- missioner The statute June 1968. powers latter all the theretofore gave in- the seeking permission to forcement officers by the former. See Pub.L. 90- exercised wire, communica- or electronic tercept oral 636(a)(1) (codified 578, § at 28 U.S.C. “judge com- writing to a of apply in tions to 2518(1). 636(a)(1)). addition, specifi- § In the statute § jurisdiction.” 18 U.S.C. petent newly cre- cally powers further of the listed of that term includes statutory definition 636(a)(2) §§ magistrates. See id. at and ated only judge “a of United States (codified (3) as amended at 28 U.S.C. appeals” court of or a United States court (3)). 636(a)(2) §§ and Commissioners had general criminal judge any court of “a of and orders, Title III State,” by authorized to issue authorized not been jurisdiction who is enumerating powers magis- the list wiretapping orders. 18 law to enter state any not include reference to the a num- trates did § Title III contains U.S.C. wiretap approval procedure Con- Title III designed tightly to control provisions ber of just gress created a few months before. to had prosecutorial tool and safe- the use of this did, however, authorize a district subject- The statute of those guard privacy interests the assign magistrates to to “such addition- generally court wiretap. United States ed to a See 505, 514-23, with the Giordano, al duties as are not inconsistent 94 S.Ct. 416 U.S. v. States,” (1974). 1820, 1826-30, For Constitution and laws United 40 L.Ed.2d 341 636(b),including § not restricted to id. at but wiretap order example, application an for a judge in the conduct “assistance to a district by the General must be authorized ... proceedings ... criminal pretrial § designees, or her see U.S.C. 636(b)(2). oath, §at writing, actions.” Id. made in under and must be authority. applicant’s with a statement of the 1976, Magistrates Act amended In was 2518(l)(a). It must also See 18 U.S.C. powers magistrates. Sec- expand to identity of the law enforcement include the 636(b) read, in relevant changed was tion provide a making the officer part, as follows: upon. relied complete statement of the facts (b)(1) any provision Notwithstanding 2518(l)(a)-(e). §§ Further- See 18 U.S.C. contrary— law to more, intercept confined to right (A) judge may designate magistrate only specified seeking Of certain evidence any pretrial determine matter to hear and offenses. 18 U.S.C. serious court, 2516(l)(a)-(o). addition, except a motion pending are before the there relief, injunctive judgment on the for and disclo- stringent restrictions on the use summary judgment, to dis- pleadings, for obtained. The statute sure of the evidence quash an indictment or information relating recording, miss or specifies safeguards defendant, by suppress evi- made minimizing sealing interceptions, as magistrate judges' duties to tion of Article III name of office of United States has judges. We note that the Court magistrate changed to "United States by opinion in this area con- judge." inter- constitutional issues uses the terms avoided struing trate changeably. This narrowly "in the Federal purpose." light its structure and Gomez States, address, raised, 490 U.S. parties we United 4. The have not nor do cases). (1989) (citing dclega- involved in the constitutional issues case, provisions to dismiss or to of Title III. in a criminal dence 2511(4)(a). action, of a class permit maintenance upon a claim for failure state dismiss B. Discussion granted, and to invol- relief can be action.

untarily dismiss an argues Petitioner United States ap have not been authorized orders, prove wiretapping either Title III (3) assigned such A by Magistrates or as first enacted in as are not inconsistent additional duties 636(b). the 1976 amendment of and laws ivith the Constitution aware, course, Petitioner is that as far States, supplied) (emphasis United assign back as district courts could (codified as Pub.L. No. 90 Stat. magistrate “such additional duties as are not 636(b)). amended at 28 U.S.C. inconsistent with the Constitution and laws of Finally, Congress passed States,” the Elec including assisting the United Privacy Act of tronic Communications pretrial proceedings in criminal (codified 99-508,100 cases, Pub.L. No. Stat. assignment and that since 1976 such 3121-3127) (the amended permissible any pretrial has “in been matter” Act). (with Privacy Act amended Title III specified exceptions applicable requiring wishing here), officers to any law enforcement “notwithstanding provision of law employ “pen register” “trap or and trace” contrary.” argues, to the Petitioner howev monitoring permission er, devices5 to seek from general language that this does allow jurisdiction.” competent See 18 delegation magistrates “court to at issue here. 3122(a). § III, Unlike the definition of emphasizes U.S.C. Petitioner that Title as ini jurisdiction” 1968, in the “judge competent wire tially passed specifically gave III, tapping provisions of Title the definition power approve wiretap applications only to to jurisdiction” competent of “court of in the judges, federal district federal circuit mag Privacy specifically Act includes federal judges empowered by and state state statute 3127(2)(A). § 18 istrates. See U.S.C. eavesdropping to issue orders and that the Privacy 1986 Act amended the definition sec provisions In to the of Title III contrast III, 2510, many § tion of Title 18 U.S.C. regarding wiretaps, pen register trap or respect respects but not with to the issue application require and trace does not autho- raised here. rization from the General or her only identify arguments. Privacy designee. strong The need These are The applicant investigating explicitly magistrates ap- and the law en- Act authorized certify prove pen register trap infor- and and trace meth- agency forcement that “the surveillance, failed to amend Title likely mation to be obtained is relevant to an ods of but magistrates investigation being specifically to authorize ongoing criminal conduct- 3122(b)(2). § If by agency.” approve wiretapping orders. ed 18 U.S.C. “judge[s] require magistrates to be provision was not intended to 1986had believed relevance; jurisdiction,”

independent judicial competent as the term is review of 2510(9), III, rather, reviewing only verify in Title 18 U.S.C. who court need used orders, wiretapping to issue completeness of the certification. See are authorized Privacy empowered have S.Rep. Cong., 2d 47 then the Act could No. 99th Sess. pen register with reprinted magistrates to issue orders 1986 U.S.C.C.A.N. Moreover, In- prison simple maximum reference back to term stead, however, speci- Privacy Act pen register trap the 1986 for violation of the or pen empowered to authorize provisions only year, persons fies trace one separate 3121(c), to a compared five-year prison register orders reference section, jurisdiction” wiretap competent violation “court of term authorized for identify eavesdropping on conversations. 5. These devices are used to numbers telephone, allow dialed to or from a but do not thereby wiretaps the material obtained which, specifically includes unlike 3127(2)(A). govern who wanted to allow the and those magistrates. in criminal material ment use argues pri respondent response, Gerena, prosecutions.” United States Mag to the amendment marily the 1976 Cir.1989) (2d (citing National F.2d authorized istrates Broadcasting Dept. Co. v. United States (with speci “any pretrial matter”6 delegate Cir.1984)). (2d Justice, F.2d here) mag applicable exceptions not fied simply to facilitate elec III was not enacted istrate, “notwithstanding any provision to the agen law enforcement tronic surveillance House Respondent points to the contrary.” contrary, To the this court has noted cies. amendment, which stated the 1976 Report on “Congress recognized that wire that because just quoted “is intended to language that the privacy,” highly intrusive of tapping could be caused problem which overcome placed on the use of the statute strict limits throughout fact that scattered Gerena, 84; wiretapping. 869 F.2d at see judge’ to ‘the which refer code are statutes Co., Broadcasting 735 F.2d at also National ” per that therefore “the ‘the court’ and or (citing S.Rep. Cong., 90th 2d assignment of additional duties to missible 67, 161-65, reprinted governed by the revised magistrate shall be 2112, 2154-56,.2222-27). Title U.S.C.C.A.N. 636(b), ‘notwithstanding any provision section “properly protect intended to referring ‘judge’ ‘court’.” of law’ communications, privacy of oral and wire H.R.Rep. No. 2d sess. 9 providing while a uniform basis for authoriz (1976), reprinted in 1976 U.S.C.C.A.N. ing interception appropriate cases.” their Privacy regard to the 1986 6169. With Bianco, States v. 998 F.2d United specifically that it autho respondent claims (2d Cir.1993). registers approve pen rized background, the interaction view this Act, wiretapping the 1986 and not because Privacy Title III and the 1986 Act between III, original post-dated unlike the Title both magistrates supports our view that have not Magistrates Act the amendment of the and approve wiretap applica- been authorized to Privacy that Act in 1976. The Act’s amend significant under Title III. It is that tions in ments in 1986 of the definitions Title III Privacy changed Act definition the the sec- magistrates to wire did not authorize issue many respects, tion of Title III in but did not orders, tapping respondent argues, because 2510(9), grants power § which the alter already Magistrates the 1976 Act had done approve wiretaps only III to federal Article so. judges judges having general and state crim- arguments, particu- jurisdiction statutory are substantial These inal and state authori- larly significant the former which relies on the 1976 zation. It is also that the 1986 Yet, only Magistrates specifically magistrates amendment to the Act. authorized we trap strong approve.pen register are left with the conviction that Title and and trace generis any Congressional monitoring, privacy III is sui and that far invasions of less in- expansion wiretapping. sharp of the list of those officers autho- trusive than There is a approve wiretaps specific stringent rized to would be contrast between the controls over general (including severity pun- rather than and indirect. It must be orders them) Congress passed enforcing remembered that Title III the much ishment and less only long obtaining pen register in 1968 after “a battle between onerous conditions for altogether prohibited those who would have and trace authorization. We believe trap arguendo Magis- 6. While we assume that the review stem from 1976 amendment Act, wiretapping "pretrial upon respondent heavily Title III orders is a matter” trates which so Rather, 636(b)(1)(A), meaning authority § within the of 28 U.S.C. relies. warrant resided search commissioners, arguable predeces- it is at least that this is not so because with United States may This, long any proceeding magistrates, the review occur before federal before the sors of Magistrates since course, may S.Rep. in court. also be true of Act. See warrant, (1968), applications reprinted for a search 2d in which sess. undoubtedly (citing trates are authorized to issue. See U.S.C.C.A.N. former 18 U.S.C. 41(a). (1964)). power § Fed.R.Crim.P. But that does not pen register And, § in just 1986 saw and See 18 U.S.C. that as 28 trap monitoring, which 636(b), and trace U.S.C. the 1976 amendment of the authorize, qualitatively to be different Act, Magistrates allows district wiretapping, only an Article III from delegate “any pretrial matter” and “addition- judge gener- federal or a state court duties,” al 510 allows the Attor- jurisdiction may authorize. al criminal ney delegate any General to of her functions. held, heavily nonetheless, The Respondent relies on this court’s Giordano Court that Diaz, though decision United States v. 922 F.2d even Title III “precise included no (2d Cir.1990), denied, U.S. -, cert. language forbidding delegation ...[,] (1991), 111 S.Ct. L.Ed.2d 119 2516(1), read, fairly was intended to limit support view the order under power wiretap applications to authorize case, attack here valid. In that we inter Attorney to the any General himself and to preted “notwithstanding” language Attorney Assistant might desig- General he 1976 amendment of the Act as nate.” 416 U.S. at 94 S.Ct. at 1826 implicitly authorizing magistrates empanel (emphasis supplied). grand juries, though Jury even Selection 1865(a), The gives Giordano Court holding Service based its on Diaz, authority only judges. purpose to district legislative history and the Diaz, however, 922 F.2d at 1002. III, did fairly Title approach read. The same important privacy involve the interests af supports also the view that wanted III. fected Title power to limit to review specified judicial purpose officers.7 The purpose legislative history The of Title III wiretapping except was to outlaw suggest allowing delegation caution in situations, certain authority conferred that statute. The indicated strict Court relied on such view of Title gathering restrictions on the and use of wire- Giordano, United States v. tap evidence. See id. 94 S.Ct. at statutory 1826-27. Those restrictions should strikingly case similar to the case at hand. specific be observed the absence of Con- Giordano involved 18 U.S.C. gressional contrary. direction to the provided Attorney which then that “the Gen- present case also stands in contrast to eral, spe- Assistant General Healey, our recent decision Austin 5 General, cially designated by Attorney the (2d Cir.1993), approved F.3d 598 in which we may application” wiretap authorize an for a automatically delegating a court rule extradi- § order. The held that Court 2516 did magistrate proceedings judges. tion to That Attorney delegate allow the to the General judi- privacy case involved neither nor power issues to authorize to the Attor- Assistant, intent, ney Congressional cial inference as to General’s Executive even though Attorney the specifically magis- General was authorized has that stated delegate any a different statute to of her proceedings trates hear extradition if “ “ officer, ‘any employee, functions other ‘authorized so to do a court of the Unit- ” ” agency Department of the of Justice.’ Id., (quoting at ed States.’ 18 U.S.C. Giordano, 416 U.S. at at 1826 S.Ct. 3184). Furthermore, § Magis- before the 510). (quoting § 28 U.S.C. Act, Congress trates had authorized extradi- proceedings, wiretap applications, tion unlike empowers judge Just as Title III “a commissioners, to be heard United States competent jurisdiction” applica- to review tions, id., 2518(1), Magistrates § Act in empowers so that the that 18 U.S.C. it Attorney applications. respect merely prior practice. General to authorize codified Respondent attempted distinguish empower Attorney 7. has Gior- that could not Gen- ground delegate authority, dano on the that the eral her Title III because General's enacted, power delegate authority under 28 U.S.C. when was she had no Title III Giordano, III, however, predated rely upon, Magistrates authority. Title while the did not Rather, mention, Attorney, timing post-dated Act III. re Title See In U.S. or even Thus, F.Supp. argued entirely Title at 1022. it could be relied on a close examination of III. refusing to allow disapproval of decision since argued that may also be

It wiretap applications. In- magistrate to hear authority search to issue have the trates deed, thought apparently no one pri- warrants, obviously upon intrude existed, respondent con- power since even interests, have intended Congress must vacy delegat- no district has ever Magistrates cedes that to the amendments in the 1976 of a Title III ed the review approve to allow too, here, magistrate before. But United States applications. empowered to issue were commissioners enacting the 1968 In III Title even before search warrants to that Act and 1976 amendment enacted, n. so that no such supra see III, Privacy to Title Con- Act amendments Indeed, the justifiable. Senate inference is mag- multiple opportunities to add gress had Title legislation that became Report on the category in judges specifically to the istrate prior pointed out that specifically jurisdiction,” “judge competent III of Title regard to commissioners with practice of are in each instance did not do so. We but permissive for “too had been such warrants growing placed upon burdens aware or oral communica- interception of wire appreciate the valu- courts and the district tions,” power to authorize elec- and that the judicial sys- furnished to the able assistance limited. be more surveillance should tronic enacting by magistrate judges. But tem reprinted S.Rep. No. III, Congress great concern for showed 2112, 2179. U.S.C.C.A.N. privacy against the vast protecting individual by wiretapping. potential posed for intrusion that a wire- dissenting brother asserts Our sum, unwilling, we are in the absence In personal priva- tap not “more intrusive on direction, statutory expansively in- explicit judicially-authorized search. We cy” than a “judge definition of a terpret Title Ill’s wiretap may capture the inti- disagree. A jurisdiction,” competent person’s life over an extend- mate details judges. magistrate to include person’s time without period of ed contrast, pursuant knowledge. search granted. Mandamus warrant, long recog- which has been just prosecutor, occurs once CARDAMONE, dissenting: tool of the Judge, nized Circuit nature, and, by puts person searched its majority concludes that the Federal privacy. A wire- the violation of on notice of Magistrates Act does not authorize district your film of events tap is like a continuous eavesdropping ap- electronic courts to refer home, secretly period of recorded over a plications, made under Title Omni- surprise A is like a or months. search weeks Act, 18 bus Crime Control and Safe Streets your your pres- snapshot home taken (Title III), to a United 2510-2521 obviously greater a far The former is ence. effect, judge. the ma- magistrate States privacy than the latter. The invasion “why” jority asks should leading to enact- lengthy battle the 1960’s authority. judges have this Were proof enough III is that Con- ment of Title body’s question, and it is that asked this comparatively new tech- gress considered purports to be our legislative purpose which eavesdropping to be far nique electronic .of be, persuaded, guide, answer would I am its pur- familiar search intrusive than the more “why presents the issue a close not?” While suant to a warrant. statutory interpretation, clearly question of scheme, statutory genealogy of Title not doubt that the 1976 Finally, we do amendments, history legislative in- and Magistrates Act was amendment of the tended, Magistrates Pub.L. No. urges, to overcome a of the respondent (codified as amended at 18 U.S.C. Stat. 1107 that had construed series of court decisions 3401-02; (1988)), §§ 631-39 narrowly to limit the “additional that Act legislative experiment aim to plain make delegated magis- that could be duties” magistrate judges 1609, in the broader use of reprinted in 1976 H.R.Rep. No. trates. perform 6162, 6164-67, to free Article But one order 6173. U.S.C.C.A.N. For reasons adjudicatory function. their Report vain for can search the House moment, respectfully efficiency I “increase[ ] in a therefore the overall of the stated Fed- judiciary, provid- eral while at the dissent. same time ing higher justice standard of point at the DISCUSSION many where individuals first come into con- 1629, tact with the H.R.Rep. courts.” No. I (1968), Cong., reprinted 90th 2d Sess. in 1968 Congress deeply con- plain It is was 4252, U.S.C.C.A.N. 4257. rights privacy about individual as re- cerned To address the deficiencies of the commis- leading up to the en- flected the debates sioners, alia, Congress required, magis- inter III in of Title June 1968. Once actment trates to be members of the bar wherever Congress decided to authorize this intrusion 631(b)(1). possible. § See 28 U.S.C. through wiretap, of a the issue of use prompted, part, to insure “both the privacy only question and the was resolved legal system accused and the indepen- of an judicial was which officers that remained question proba- dent determination of the authority wiretap. would have the to order a Congress ble cause.” Id. at 4256. obviously differing It is our views on the answer to that 2510(9) could have modified expressly question prompts this dissent. magistrates authority extended to to au- statute, requires III wiretaps. Perhaps thorize Title it was wiretap applications all to be submitted thought unnecessary in light Magis- competent jurisdic- writing “judge trates Act spent itself. No time need be “(a) tion,” judge defined as: of United speculating on this because in 1976 district court or a United States court States magistrates made clear how desired to be (b) appeals; a. court of judicial system. used in our jurisdiction general criminal who is State authorized a statute of that to enter State II [wiretap] orders.” 18 U.S.C. legislative history As the of the 1976 2510(9) At the time was drafted and the-Magistrates amendments to Act demon enacted, Congress could not have included strates, Congress was troubled a series of in the definition because Magis court decisions that construed the Commissioners, trates did not then exist. narrowly, stifling greater trate’s Act use required lawyers, who were not to be were magistrates by the district courts. See equivalent, their ostensible did H.R.Rep. Cong., No. 94th 2d Sess. 6 capable judicious- not deem commissioners (1976), reprinted in 1976 U.S.C.C.A.N. ly reviewing wiretap applications. See accordingly reorga 6166. The amendments (1968), S.Rep. Cong.2d No. 90th attempt nized the Act in an

reprinted in 1968 U.S.C.C.A.N. clarify and further define the additional fact, Congress did not believe commission- assigned magistrate. duties that competent they ers were in the duties were States, See Gomez v. United 490 U.S. perform, authorized to such as review of applications for and authorization of search (1989). 636(b) reads, The revised in rele H.R.Rep. and arrest warrants. part, vant as follows: reprinted 2d Sess. (b)(1) in 1968 U.S.C.C.A.N. 4255-56. Notwithstanding any provision of contrary— law to the response perceived inadequacy, to this (A) III, passage may four after judge designate magistrate months of Title a a any pretrial enacted October 1968the Feder- to hear and determine matter court, Magistrates pending except al Act. With the creation of the a before the motion relief, injunctive of magistrate, judgment office the United States for for on the Con- gress pleadings, summary judgment, abolished office of commissioner. for to dis- quash were vested with all the authori- miss or an indictment or information commissioners, defendant, ty previously by along by suppress held made evi- ease, greatly expanded designed with duties dence a criminal to dismiss or to action, encompassed by specific a authorization a of class maintenance permit 636(b). §of upon the remainder a claim failure to state dismiss n to invol- granted, and can be relief which reference, Authority it seems to for such an action. untarily dismiss pre me, of either the falls within the orbit duties matters clause or the additional trial designed overall Act is “[t]he clause because (3) may assigned be such magistrate A courts of certain subor the district relieve inconsistent duties as are not additional district duties that often distract dinate and laws of Unit- the Constitution with Per important more matters.” courts from added). (Emphasis ed States. States, U.S. -, etz v. United (1991); 2668, 2661, see also appeal, the two purposes of the instant For 94-1609, Cong., H.R.Rep. No. 94th 2d Sess. 636(b)- “pretrial § of clauses underlined —the 6162, (1976), reprinted in 1976 U.S.C.C.A.N. clause— the “additional duties” and matters” (magistrate to “assist the district is authority per- of my view the source are variety preliminary judge pretrial in a a wire- mitting magistrate judge to review thereby facilitating the ultimate and matters authorize its issuance. tap application and adjudicatory function at final exercise of the importance is the statute’s lead-in equal Of case”); S.Rep. No. the trial sentence, any “Notwithstanding that reads: (1972), reprinted in Cong., 2d 92nd Sess. sig- contrary Its law to the provision of —.” 3350, (magistrates 1972 U.S.C.C.A.N. will be addressed first. nificance judges to the “render valuable assistance pretrial matters modifies This sentence courts, thereby freeing the time the district clauses, includ- duties and was and additional cases”); trial for the actual those pre- like that to resolve issues ed order Cong., 2d H.R.Rep. No. 90th Sess. is, appeal, that whether on this sented (1968), reprinted in 1968 U.S.C.C.A.N. may validly refer to a judge district (purpose “to cull from the is statutorily assigned judge a trate task ever-growing workload of the U.S. district judge. As both the Senate desirably per matters that are more courts Judiciary explained: Committees House officers”). judicial tier of formed a lower hing question to the now raised The answer initial sentence of the revised section the referral is a any pro- es therefore on whether phrase “notwithstanding uses the pretrial matter. contrary of law to the vision —”. to overcome language is intended may by the fact problem which be caused A. Pretrial Matters throughout the code are that scattered clause, mag- pretrial matters Under judge” or “the which refer to “the statutes assigned judge be to “hear istrate for the court.” It is not feasible any pretrial matter.” 18 determine to read “the change each of these terms 636(b)(1)(A). The district court retains is, therefore, magistrate.” It power magistrate’s supervisory to review permissible assignment intended that the upon showing it “is determination to a shall be of additional duties Id.; clearly contrary to law.” erroneous or 636(b), governed the revised section Gomez, 109 S.Ct. at see also 490 U.S. “notwithstanding any provision of law” re- pretrial to the mat- 2244. The amendment ferring “judge” or “court.” “clarify the au- ters clause aimed to broad ” (1976); ‘any pretrial matter.’ thority to refer Cong., S.Rep. No. 94th 2d Sess. H.R.Rep. No. 94th 2d Sess. Cong., 2d H.R.Rep. (1976), reprinted in 1976 U.S.C.C.A.N. reprinted in 1976 U.S.C.C.A.N. dispositive Only eight categories of legisla- 6169. plain expression this 6169. Given 2510(9) motions, fall might otherwise pretrial purpose, language tive 636(b) range pretrial matters within the broad so as to allow a district modified referred, excepted. were that could judge to refer a Title 636(b)(1)(A). provided is magistrate judge, the referral

941 325, 1149, 1153, application wiretap III S.Ct. L.Ed.2d 347 of a Title Referral (1987) search,” exceptions. (finding An that search “[a] enumerated is not one of the is intrusiveness). statutory interpretation regardless of maxim of its level ancient apt parsing privacy a circum is because out particularly such invasions seems tramples bright on the line unius est exclusio alteri- the Court has stance: “Inclusio ” (The attempted to of one is the exclusion establish Fourth Amendment us inclusion another). Hence, Thus, logically privacy that since cannot it follows law. serve as a rea- pretrial deny matters to a reference to a eight exceptions to the son wiretap judge. refer not include Title clause did rals, categories of it was not one of those Moreover, perhaps importantly, most range of cases excepted from the broad cases applications for arrest and search warrants properly could be referred. See United that regularly magistrate judges call on to make (2d Diaz, 998, F.2d Cir.

States probable the same cause determination that 1990). an affirmative reason to be Absent is at the heart of all Title III pur the 94th had different lieve 2518(3)(a)(b)-(c). decisions. See 18 U.S.C. judicially repeal the au pose, we should not Affording right to dele by Congress to refer effectuated thorization gate authority magistrate judges this does in 1968 and in 1976. pretrial therefore not construe the matters slight significance that

It of more than responsibilities is clause so as “to include of far were arrest warrants and search warrants greater importance specified than the duties pretrial Peretz, matters enu- among those criminal assigned magistrates.” Report -, 2667; Gomez, that set merated the Committee at S.Ct. at see also types pretrial 864, matters included (“Any forth the at at 490 U.S. 109 S.Ct. Gomez, provision. this See 490 U.S. performed pursuant within duties additional 16; 868, 16, at 2244 n. n. 109 S.Ct. general authorization in the reason statute H.R.Rep. Cong., 2d No. 94th Sess. ably speci should bear some relation to the duties.”). such, reprinted in 1976 U.S.C.C.A.N. principled fied As there is no parte 6169. The ex nature of such wiretap application to infer that a reason wholly analogous to applications is scope pre individual not fall should within wiretap. clause, The notion the authorization for trial matters an while arrest intrusive on wiretap that a is somehow more search warrant should. privacy an or search personal than arrest noted, Congress, as has ruled that arrest

warrant, only to be authorized and therefore pretrial warrants are matters and search reality. by judge, blinks an Article meaning of the clause. Go within the Concededly, subject or mez, those to an arrest 868, n. at 2244 490 U.S. at notice at the time the search warrant have 16; H.R.Rep. n. 2d occurs, intrusion while the is secret (1976), reprinted knowledge But im- and without notice. compar 6169. The U.S.C.C.A.N. nature of parted comes about because of the destroyed simply analysis be ative intrusion, there is a view that not because these matters are also embraced cause greater it constitutes a or lesser invasion 636(a)(1), magistrates which authorizes right privacy than does a an individual’s previously held com assume all the duties wiretap. might It well be said that the exe- repeating It that commis missioners. bears only deprives cution of an arrest warrant not han roundly criticized for their sioners were right privacy, her matters, the individual of his or was a itself dling of those also denies to the individual the fundamental major impetus for the creation of right liberty, making privacy intru- place. in the first imposed by wiretap. greater sion than Duties B. Additional

Yet, ju- distinctions Fourth Amendment the cases in- nor risprudence differing levels of Neither based on altogether clear on interpreting the Act are trusiveness are disfavored Hicks, clause or scope pretrial matters See Arizona v. 480 U.S. Court. Title III or- Specifically, applications for pretrial matters between the delineation prolix by long and accompanied are ders clauses. Notwith- duties additional and the these affidavits. Review of murkiness, assignment if the standing this judicial offi- consuming and the often time mat- pretrial application is not Title III his or her task does not end with cer’s the catch-all ter, must fall within it then After the wire on the order. signature duties” clause. “additional periodic place, in there are interception is no that because suggests government The judicial require the officer to reports that referred an judge has ever other Moreover, where progress. monitor its Judge should Korman magistrate judge, seized, judi- conversations are relevant such because not to refer mandamused usually equal- with will be faced cial officer power. beyond his doing he acts so applications. ly lengthy prolix renewal contention, by my respected col- upheld here Attorney, F.Supp. In re U.S. Congress’ purpose when leagues, thwarts (E.D.N.Y.1992). Refusing to allow referral clause in the the additional duties included magistrate judges applications to of these Act. to the 1976 amendments eyes, intended to be an extra set who are encourage experimenta- sought to already regularly who ears and hands and judges of time- relieve district tion so as to many of which re- perform similar require not an consuming matters that do tasks — of whether or quire the same determination judge, that distract such Article only undermines probable cause not trying of cases. As judges from the exists— thorough goal ensuring moni- the common explained: Judiciary House Committee toring applications. of Title III enables the district This subsection experimenta- to continue innovative courts stamped impri- has its The Court judicial At use of this officer. tions in the interpretation of the addi- matur on a broad time, placing this authorization the same Congress’ with tional duties clause consistent emphasizes entirely separate subsection an plan. any way by any that it is not restricted generality category of the of “addi- The authority magis- to specific grant of other Congress in- tional duties” indicates trates. judges significant give tended to federal subsection, district courts this Under im- leeway experiment possible with experiment in the remain free to would judicial efficiency provements assignment of other duties already process that had not been tried or necessarily be included not foreseen. If had intended even category “pretrial matters”. the broad strictly duties to to limit these additional hearings in committee

functions considered debates, in- presumably it would have experi- judges willing to If district are particulars a bill of cluded the statute assignment magistrates ment with the residuary rather than a broad clause. functions in aid of the business of other — Peretz, at -, 111 S.Ct. at 2667. courts, increased time there will be only placed limitations on this method un- for the careful and available judicial testing improvements in efficien vital and tra- performance hurried of their in Peretz. cy expressed the Court duties, adjudicatory ditional conse- First, duty just supplemental with a under efficiency quent and the benefit both clause, delegation of pretrial matters justice quality of in the Federal courts. duty pursuant “additional another H.R.Rep. Cong., 2d responsibilities clause cannot “include duties” (1976), reprinted in 1976 U.S.C.C.A.N. specified greater importance than the of far Peretz, assigned magistrates.” duties -, 2667. For the the burden re- U.S. at S.Ct. Judge Korman describes earlier, this limitation is discussed applications places on al- reasons view of Title implicated. ready overworked district courts. (1971).

Second, Obviously, “in delegated duty cannot be 564 the Fourth the Amend by delegation and laws of ment is not violated the of a with the Constitution consistent 636(b)(3). wiretap application magistrate judge. to a 28 U.S.C. the United States.” language preclude cannot a district Because the Court found no This constitutional Peretz, impairment in a Title III it “therefore attached] court’s referral of importance far ... simply language because of the less to the fact that magistrate Con gress jury affirmative indi did not focus on Some selection as a 18 U.S.C. possible purpose prohibit duty magis additional congressional cation of — at -, required or some trates.” 111 is U.S. S.Ct. at 2667. use Peretz, As in the the Constitution must be shown. absence here of consti conflict with difficulty Any reading of the statute would ren tutional obviates the need to find other 636(b), unambiguous Congress’ language design lead-in “not evidence of der the law,” superflu among withstanding any provision applications include Title the addi ous, statutory contravening the norms of con tional duties district court can refer to a — Commissioner, magistrate. Freytag v. See id. struction. See 2631, 2638, -, -, 115 S.Ct. U.S. (1991); Pennsylvania Public

L.Ed.2d 764 Ill 552, Dept. Davenport, 495 U.S. Welfare 563, government urges analysis The that 2126, 2133, 109 L.Ed.2d 588 110 S.Ct. Congress’ guided by intent in this case be (1990). example, court in For as the district Privacy the Electronic Communications Act out, points jury the instant case verdict 1986, Pub.L. No. 100 Stat. 1848 must under Fed.R.Crim.P. 31 be returned (codified §§ at amended 18 U.S.C. 3121- legislative history But judge.” “a (1988)). argument fails for several 636(b) that the additional duties teaches reasons. permits magistrates jury to take a clause with, begin unflagging To courts have an trial is unavailable.” verdict “where the duty to read the laws of the United States 1026, Attorney, F.Supp. In re at See U.S. judges perceive accord with what is Con Hence, “judge” may n. 10. the word not be scheme, gress’ judges might prefer. not as Congress’ with scheme to read consistent Cardoza-Fonseca, See INS v. 480 U.S. “magistrate judge,” absent some af exclude 1207, 1221, 107 S.Ct. legislature. firmative indication from the (1987); Federal Election v. Demo Comm’n Further, interplay of the Comm., Campaign cratic 454 U.S. Senatorial opinions (allowing in Peretz Court’s (1981). 27, 32, 38, 42, 70 102 S.Ct. L.Ed.2d assign jury in a criminal courts to voir dire Thus, by guided we must be what the 94th parties case to when the con- Congress in mind when it enacted the had sent) (not allowing foregoing and Gomez Magistrates 1976 amendments to the Act consent) particu- parties where the did not is and, extent, plan to a lesser the 90th larly respecting scope instructive and, Congress had when it enacted Title Peretz, additional duties clause. session, original Mag later that same holding predicat- Court said its Gomez was say Congress’ istrates Act. To magistrate’s conducting ed on concern intent was that Title III should jury without a con- voir dire defendant’s magistrate judges pursu not be referred to potential deprivation sent involved the Magistrates ant to the Act because the 99th right privilege. significant constitutional did not amend Peretz, -, 111 S.Ct. at U.S. 2510(9) 2518(1) rely reed to is weak construing comprehensive on such stat when case, say, That “it is well settled that In the instant there are no constitu utes. subsequent Congress form a Amendment re ‘the views of a tional concerns. Fourth inferring intent of an quires probable hazardous basis for that the cause determination ” States, 464 magis one.’ Russello v. United be made a “neutral and detached earlier 16, 26, 104 78 L.Ed.2d Coolidge Hampshire, 403 S.Ct. trate.” See v. New U.S. (1983) 2022, 2031, County (quoting Pharma 29 L.Ed.2d S.Ct. Jefferson Labs., pen register act of construction to view the 460 U.S. v. Abbot ceutical Ass’n repealing 1021 n. 1986 as 165 n. (1983)). implication.

L.Ed.2d Further, assuming arguendo that we even Finally, government declares that the guided what sense be should some stringent controls contrast between the reason- its actions can Congress did wiretap the much placed on orders versus not to conflict with ably read so as pen register requirements for less onerous applications can be that Title conclusion Congress indicates authorizations magistrate. The 1976 amend- to a referred required approval thought wiretap orders the “notwithstand- inclusion of ments and its equally plausible judge. It is of district contrary” language was ing law to recognized that believe the use Congress modified all in effect. reflective register compared pen —did “judge” or provisions that referred to those implicate the Fourth Amendment. See “court,” plain. Included perfectly it made as Maryland, v. U.S. Smith 2510(9), it sweep was de- within that (1979). 2577, 61 L.Ed.2d 220 S.Ct. competent jurisdiction in all judge of fined III. then-existing provisions of Title CONCLUSION Next, included the when later stated, deny I For the reasons vote register provisions in it could not pen petition for a writ of mandamus. simply have said must be sub- competent jurisdiction” “judge mitted to government as the

and referenced Doing have rendered the

argues. so would ambiguous.

pen register provisions The re- logically could not

flective 1976 amendments provisions modify later-enacted

be read consequence, III. As a a new term had

Title sec- to be used with different definitional CORPORATION, In re CHATEAUGAY tion, magistrate. included Insofar as Inc., Corporation, Reomar, LTV LTV 2510(9) pertained wiretap ap- Title Inc., Company, LTV Steel Tubular Steel no need to plications, there was therefore Company, Products Debtors. it; Congress already had change or amend changed it in 1976. Inc., FRITO-LAY, INC., Holding, FL Ain proposition govern- disputing In this Casualty Corporation, wick and Aetna Giordano, ment’s reliance on Surety Company, Plaintiffs-Appel mis- S.Ct. lants, Attorney placed. Because the General’s power delegate authority under CO., INC., Chateaugay III, Cor predated logically 510 LTV STEEL Reomar, Inc., Corpora language poration, LTV modify unambiguous could not tion, Arabia, Inc., Kentron LSC Title III so as to allow the Saudi Leasing, Inc., Corporation delegate power LTV General to to authorize International, N.V., (Wyoming), LTV wiretap applications. analyzing this issue Company, Sales Finance LTVUS Court would focus on Title III LTV N.V., Repsteel statute, Corp., Finance Overseas because as the later-enacted Systems, Inc., contrast, BCNR expanding pro- Educational controlling. LTV Mining Corporation, Bardale Coal Com and the visions both the 1976 amendments Virgi III, Corporation pany, Barrel West original Magistrates Act succeed Title Co., nia, Crystalane, Inc., Crystalee Hence, provi- Coal they control. and as such Co., Leasing Corpora Erie B. Dearborn sions of the 1981 Electronic Communications Co., tion, Development I Erie Erie Cor really light the control- shed no new on (for Mining Co., poration, LTV Steel ling It violates a cardinal rule of statutes.

Case Details

Case Name: In Re United States of America

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 23, 1993

Citation: 10 F.3d 931

Docket Number: 520, Docket 93-3074

Court Abbreviation: 2d Cir.