[Federal Register Volume 61, Number 44 (Tuesday, March 5, 1996)]
[Rules and Regulations]
[Pages 8472-8473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4927]
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DEPARTMENT OF JUSTICE
28 CFR Part 52
[AG ORDER No. 2012-96]
RIN 1105-AA43
Revision of Policy Concerning Consent To Try Civil Matters Before
Magistrate Judges
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: The United States Department of Justice is publishing a final
rule to revise and clarify Department policy concerning consent to try
civil matters before magistrate judges.
EFFECTIVE DATE: This final rule is effective March 5, 1996.
FOR FURTHER INFORMATION CONTACT:
Mary C. Morgan, Deputy Assistant Attorney General, Office of Policy
[[Page 8473]]
Development, Department of Justice, Washington, DC 20530, telephone
(202) 514-0052.
SUPPLEMENTARY INFORMATION: A working group consisting of
representatives from senior Justice Department offices and litigating
divisions and the United States Attorneys' Offices reviewed the
Department's policy concerning consent to try civil matters before
magistrate judges. As a result of this review, the Department reaffirms
its existing policy of encouraging the use of magistrate judges to
assist the district courts in resolving civil disputes whenever
possible, as set forth in 28 CFR 52.01, but makes several clarifying
changes.
Paragraphs (1) through (4) of Sec. 52.01(a) merely summarize
provisions of federal statutory and case law set forth elsewhere. This
rule eliminates those paragraphs, thus streamlining the Code of Federal
Regulations.
This rule deletes from Sec. 52.01(b) the two sentences immediately
following paragraph (7). The first sentence--referring to cases
``involving significant rights of large numbers of persons, or complex,
sensitive, or unusually important issues''--is unnecessary and
inconsistent with existing Department policy set forth elsewhere in
this Part. Instead, this rule amends Sec. 52.01(b)(1) to include a
reference to the involvement of significant rights of large numbers of
persons as a factor to be considered relating to the complexity of the
case.
The second sentence--referring to a formal consultation process
with the appropriate Assistant Attorney General--is unnecessary given
the large number of cases in which a consultation with the Assistant
Attorney General is not required because redelegation authority has
been exercised. This rule amends Sec. 52.01(b) to require that the
determination by the government attorney whether to consent to a trial
before a magistrate judge simply be made ``with the concurrence of his
or her supervisor.'' The rule retains the requirement currently
existing in Sec. 52.01(d), but incorporates it into Sec. 52.01(c), for
consultation with the appropriate Assistant Attorney General regarding
consent to an appeal to the district court rather than to the court of
appeals but deletes the phrase ``to a trial before a magistrate.'' The
rule amends Sec. 52.01(b) by adding the phrase ``as set forth in this
paragraph'' to clarify that the determination is based upon
consideration of all the enumerated factors.
This rule conforms the terminology of Secs. 52.01 and 52.02 to the
Judicial Improvements Act of 1990, Pub. L. 101-650, section 321, which
changed the designation of persons appointed under 28 U.S.C. 631 from
United States magistrate to that of United States magistrate judge.
Administrative Procedure Act 5 U.S.C. 553
Because these regulations relate to agency management or personnel,
the Department of Justice finds good cause for exempting them from the
provision of the Administrative Procedure Act (5 U.S.C. 553) requiring
notice of proposed rulemaking, the opportunity for public comment, and
delay in effective date.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this final rule and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities.
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b). The Attorney General has
determined that this rule is not a significant regulatory action under
Executive Order 12866, section 3(f), and, accordingly, this rule has
not been reviewed by the Office of Management and Budget.
List of Subjects in 28 CFR Part 52
Courts.
Accordingly, for the reasons set forth in the preamble, part 52 of
chapter I of Title 28 of the Code of Federal Regulations is amended as
follows:
PART 52--PROCEEDINGS BEFORE U.S. MAGISTRATE JUDGES
1. The heading for Part 52 is revised to read as set forth above.
2. The authority citation for part 52 continues to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3401(f).
3. Section 52.01 is revised to read as follows:
Sec. 52.01 Civil proceedings: Special master, pretrial, trial, appeal.
(a) Sections 636 (b) and (c) of title 28 of the United States Code
govern pretrial and case-dispositive civil jurisdiction of magistrate
judges, as well as service by magistrate judges as special masters.
(b) It is the policy of the Department of Justice to encourage the
use of magistrate judges, as set forth in this paragraph, to assist the
district courts in resolving civil disputes. In conformity with this
policy, the attorney for the government is encouraged to accede to a
referral of an entire civil action for disposition by a magistrate
judge, or to consent to designation of a magistrate judge as special
master, if the attorney, with the concurrence of his or her supervisor,
determines that such a referral or designation is in the interest of
the United States. In making this determination, the attorney shall
consider all relevant factors, including--
(1) The complexity of the matter, including involvement of
significant rights of large numbers of persons;
(2) The relief sought;
(3) The amount in controversy;
(4) The novelty, importance, and nature of the issues raised;
(5) The likelihood that referral to or designation of the
magistrate judge will expedite resolution of the litigation;
(6) The experience and qualifications of the magistrate judge; and
(7) The possibility of the magistrate judge's actual or apparent
bias or conflict of interest.
(c) (1) In determining whether to consent to having an appeal taken
to the district court rather than to the court of appeals, the attorney
for the government should consider all relevant factors including--
(i) The amount in controversy;
(ii) The importance of the questions of law involved;
(iii) The desirability of expeditious review of the magistrate
judge's judgment.
(2) In making a determination under paragraph (c)(1) of this
section the attorney shall, except in those cases in which delegation
authority has been exercised under 28 CFR 0.168, consult with the
Assistant Attorney General having supervisory authority over the
subject matter.
Sec. 52.02 [Amended]
4. Section 52.02 is amended by removing the word ``magistrate''
wherever it appears and adding, in its place, ``magistrate judge'' and
by removing the word ``magistrate's'' wherever it appears and adding,
in its place, ``magistrate judge's''.
Dated: February 26, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-4927 Filed 3-4-96; 8:45 am]
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