[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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