Monday, March 7, 2011
Meehan Rasch has posted Rethinking Appellate 'Waiver' Rules: Forfeiture of Article III Review of Magistrate Judges and Federal Rule of Criminal Procedure 59’s Post-Olano Language Problem (Chapman Journal of Criminal Justice, Spring 2011) on SSRN. Here is the abstract:
In 1985, the U.S. Supreme Court held in Thomas v. Arn that a federal court of appeals may establish a rule that failure to file objections to a magistrate judge’s report and recommendations "waives" both the right to further review by the district court and the right to appeal the judgment to the court of appeals. The Arn majority determined that such a rule did not remove the essential attributes of the judicial power from the Article III court or elevate non-life-tenured magistrate judges to the functional equivalents of Article III judges. Rather, loss of the right to any Article III review through failure to object to a magistrate judge’s report and recommendations merely constituted a nonjurisdictional "procedural default," similar to failure to pay an appellate filing fee or failure to file an appeal before an internal court deadline. The Court emphasized that discretionary appellate review “in the interest of justice” remained available.
Despite describing such a rule as a "procedural default," the Arn Court consistently used the term "waiver" throughout the opinion to describe the operation of the rule. Many circuits - although not all - adopted analogous rules under their own supervisory powers, and in 2005 an Arn-type rule became codified as Federal Rule of Criminal Procedure 59. Similar to Arn, Rule 59 established for criminal matters that failure to timely object to a magistrate judge’s decision "waives a party’s right to review."
However, in the twenty-year span between the Arn decision and the promulgation of Rule 59, the 1993 U.S. Supreme Court case of United States v. Olano carved out a special meaning for the word "waiver." The Olano Court established that there is a procedural and substantive distinction between waiver - "the intentional relinquishment or abandonment of a known right" - and forfeiture - "the failure to make the timely assertion of a right." Substantively, waiver fully extinguishes any error, precluding any form of review, whereas "mere" forfeiture means that an error, which is clear and affects substantial rights, remains potentially reversible under plain error review.
Failing to timely object is the paradigm example of forfeiture, and Thomas v. Arn’s "interest of justice" discretion has been held equivalent to review for plain error. Accordingly, "waiver" is an inapt description of the default rules authorized by Arn, despite the initial use of "waiver" in the Arn Court’s opinion, before Olano had specifically construed the term. By using the language of "waiver" post-Olano, Rule 59 semantically insinuates that every avenue of review, even plain error review, is foreclosed by the failure to timely file objections to a magistrate judge’s report and recommendations. As such, the language of Rule 59 obfuscates the actual availability of plain error review. The parameters of appellate "waiver" rules demand greater clarity, particularly to the extent that this misleading choice of words subtly disrupts the constitutional rationale for magistrate judge adjudication, which rests on the presumption, at minimum, of some level of review by a life-tenured Article III judge. Among other conclusions, this Article recommends a change in the language of Rule 59 to more accurately reflect the current limits of appellate "waiver" for failure to timely object to a magistrate judge’s report and recommendations, and to aid the future constitutional analysis of magistrate judge adjudication.