Legal Commentary

Magistrate Judges, District Court Judges, and Stare Decisis

By Orin Kerr

Back in August, I had a long post, Fourth Amendment Stunner: Judge Rules That Cell-Site Data Protected By Fourth Amendment Warrant Requirement, about a recent Fourth Amendment decision by Magistrate Judge James Orenstein. I wasn?t subtle in expressing my view that it was wrong: I called Magistrate Judge Orenstein?s decision ? an extraordinary opinion, in my view: It?s an extraordinary result, reached in an extraordinary way, and based on an extraordinary number of errors.? I recently went on Westlaw to see if the government had appealed Judge Orenstein?s decision, and it turns out that they had. In a summary order issued on November 29, 2010, District Judge Roslynn Mauskopf had reversed the decision, granted the government?s application, and indicated that an explanatory opinion would follow. The explanatory opinion has not yet been issued, as far as I know.

What makes the issue interesting is that following District Judge Mauskopf?s reversal, Magistrate Judge Orenstein was faced with another ?essentially identical? application. Despite the order reversing his earlier order and granting the government?s application, Judge Orenstein decided to stick to his guns and deny the application on the ground that he was right before and the District Court was wrong. Judge Orentsien?s December 23 opinion is here, and he offers the following reasons in support of his denial of the application despite the District Court?s ruling:

1) A District Judge?s decision is not controlling authority on a magistrate judge, especially when the District Judge is no longer the judge who would be assigned the appeal if the government files an appeal from a denial of the application.
2) Where an issue is an issue that is normally litigated before a magistrate judge on an ex parte basis, magistrate judges should not defer to legal decisions by district court judges because doing so could ?freeze in? the law.
3) Judge Orenstein is very confident that his view of the Fourth Amendment is correct, bolstering his case by reference to the denial of rehearing en banc in the DC Circuit?s Maynard case, dicta in a recent Third Circuit opinion, and the decision of one magistrate judge in Texas agreeing with Judge Orenstein?s earlier order.

To me this raises an interesting set of issues that I don?t think I have seen covered elsewhere. Are Magistrate Judges bound as a matter of stare decisis by District Court decisions in their district? If so, by what authority? And if not, what stops a Magistrate Judge from simply ignoring the decisions of District Court judges? On one hand, I don?t know of any authority saying that Magistrate Judges are bound by a District Court decision in their district; on the other hand, I can?t recall cases in which Magistrate Judges did not follow such decisions. Perhaps it?s just an issue of custom, in that Magistrate Judges are appointed by District Court judges ? and therefore generally won?t defy their precedents if they want reappointment? I?d be curious to know what readers think of the issue.

Full post as published by The Volokh Conspiracy on February 10, 2011 (boomark / email).