The opinion of the court was delivered by: EDWARD R. KORMAN
Pursuant to an administrative order of Chief Judge Platt, I am serving in the Miscellaneous Part from February 10, 1992 to February 23, 1992. One of the duties of the judge assigned to the Miscellaneous Part is the review of applications for electronic eavesdropping orders pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. § 2510-21 (1988). Because it is my intention to refer such applications to a United States magistrate judge, I address here the issue whether the referral of a Title III application to a United States magistrate judge is authorized by the Federal Magistrates Act.
The Federal Magistrates Act of 1968, Pub. L. No. 90-578, 82 Stat. 1107, codified as amended at 18 U.S.C. §§ 3401-3402; 28 U.S.C. §§ 631-39 (1988 & Supp. I 1989), abolished the office of United States commissioner and replaced it with a judicial officer serving directly below the level of the district court. Congress imposed significant requirements to ensure the competency and impartiality of these judicial officers and it gave them significantly -- indeed, dramatically -- more responsibility than it had previously conferred on United States commissioners.
Congress conferred on magistrates not only all powers formerly exercised by commissioners, it also conferred on magistrates the power to try minor offenses when all parties consent, and to perform such additional duties assigned by the district court as are "not inconsistent with the Constitution and laws of the United States." Federal Magistrates Act of 1968 § 636(b), Pub. L. No. 90-578, 82 Stat. 1108, 1113 (1968). The "additional duties" could include, but were not restricted to
(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;
(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and
(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.
The experience under former section 636(b) demonstrated that magistrates were fulfilling their intended function of assisting "the district judge to the end that the district court judge could have more time to preside at the trial of cases." H.R. Rep. No. 1609, 94th Cong., 2nd Sess. 6 (1976), reprinted in 1976 U.S.C.C.A.N. 6162, 6166. Congress was disturbed, however, by a series of cases that construed former section 636 in a manner that limited the "additional duties" that could be conferred on magistrates. See e.g. Wingo v. Wedding, 418 U.S. 461, 41 L. Ed. 2d 879, 94 S. Ct. 2842 (1975); T.P.O. v. McMillan, 460 F.2d 348 (7th Cir. 1972); Ingram v. Richardson, 471 F.2d 1268 (6th Cir. 1972). Accordingly, former section 636(b) was rewritten in 1976 to restate and clarify "the Congressional intention that the magistrate should be a judicial officer who, not only in his own right but also under general supervision of the court, shall serve as an officer of the court in disposing of minor and petty criminal offenses, in the preliminary or pretrial processing of both criminal and civil cases, and in hearing dispositive motions and evidentiary hearings when assigned to the magistrate by a judge of the court." H.R. Rep. No. 1609, 94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S. Code Cong. & Admin. News 6162, 6165.
There are two clauses of the revised section 636(b) that are particularly relevant to the issue whether an application for an eavesdropping order may be referred to a United States magistrate judge: The "pretrial matters" clause and the "additional duties" clause. An analysis of the language and legislative history of these two clauses, which were enacted after the Omnibus Crime Control and Safe Streets Act of 1968, provides compelling support for referral of these applications to a United States magistrate judge.
A. The "Pretrial Matters" Clause
The "pretrial matters" clause of the Federal Magistrates Act provides that, "notwithstanding any provision of law to the contrary . . . any pretrial matter pending before the court," except for certain dispositive motions, may be referred to a United States magistrate judge. 28 U.S.C. § 636(b)(1)(A). Because this clause is applicable to ex parte proceedings that take place prior to the commencement of a criminal case, United States v. Diaz, 922 F.2d 998 (2d Cir. 1990), the principal objection to the referral of an application for a Title III order to a United States magistrate judge derives from the fact that these judicial officers are not among the judges of competent jurisdiction in whom Congress explicitly vested the authority to issue such orders -- namely, judges of the United States district courts and the courts of appeals.
18 U.S.C. §§ 2510(9)(a) and 2516(1).
Of some relevance to this objection is United States v. Giordano, 416 U.S. 505, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974). There at issue was 18 U.S.C. § 2516(1), as originally enacted, which empowered the "Attorney General or any Assistant Attorney General specially designated by the Attorney General" to "authorize an application to a federal judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications" by federal investigative agencies. Omnibus Crime Control and Safe Streets Act of 1968 § 2516(1), Pub. L. No. 90-351, 82 Stat. 197, 216 (1968).
Relying on 28 U.S.C. § 510, which authorized the delegation of "any function of the Attorney General" to "any other officer" or "employee" of the Department of Justice, the Solicitor General argued that the power to authorize a Title III application could be delegated by the Attorney General to a subordinate other than an Assistant Attorney General. In rejecting this argument, the Supreme Court wrote: