Split Noted: Effect of Failing to Object to a Magistrate's Report

Per Dupree v. Warden (11th Cir. May 7, 2013)

The CA11 requires a district judge to rule on all grounds raised in a habeas petition.  Here, the magistrate overlooked one claim.  The petitioner did not object, and the district court accepted the magistrate's report.

This CA11 panel does the right thing, and abides by panel precedent requiring a finding of reversible error.  (p. 8-9.)  In so doing, however, the panel notes that the CA11 is an outlier in a three-way circuit split regarding the effect of failing to object to a magistrate's report, and recommends an en banc to shift position.  (p. 14-19.)

Most Lenient:  The CA11 rule, which is the same as the CA8 and CA9, holds that failure to object has no effect on the de novo review of legal issues.  For factual issues, the CA11 and CA8 employ plain error review (see middle paragraph below), while the CA9 deems such objections waived (see strictest paragraph).

Middle:  The CA3 and CA5 always employ plain error review for both factual and legal issues.  They permit reversal if the appellant can show (1) plain (2) error that both (3) affects substantial rights and (4) undermines the fairness or integrity of judicial proceedings.

Strictest:  The CAs 2, 4, 6, 7, and 10 apply a firm waiver rule.  Failure to object waives appellate review of both factual and legal issues.  Such waiver may be waived by the court in the interests of justice, and does not apply if the magistrate does not warn of the effects of failing to object.

Here the panel recommends adopting the strictest approach.  I agree.  A number of considerations support this approach.

First, judicial economy, as the Supreme Court stated in Thomas v. Arn, 474 U.S. 140 (1985)--a decision affirming, but not requiring, the CA6's strict approach.

Second, if--as required--a magistrate warns of the effect of failing to object, then the failure to object is indeed the intentional relinquishment of a known right.  United States v. Olano, 507 U.S. 725 (1993).  And even if only done by counsel, counsel is an agent for the party, and the party is responsible for the failings of his counsel.  Link v. Wabash R.R. Co., 370 U.S. 626 (1962).  Such waiver argues against the middle-ground approach of the CA3 and CA5.

Third, imposing a waiver rule is not jurisdictional, so appellate courts still retain authority to correct manifest injustices.  Hormel v. Helvering, 312 U.S. 522 (1941).

Fourth, adopting a waiver rule would bring Civil Rule 72 in line with Criminal Rule 59, adopted in 2005.

In sum, all indications point to adopting the strictest rule.  And while the CA11 may go en banc to adopt that approach, the rulemaking committee should make the waiver rule explicit in civil rule 72, as it did in criminal rule 59.  That would spare the resources necessary for the CA8 and CA9 to also go en banc to adopt this appropriate rule.