Objecting to a magistrate judge's ruling: 14 days, and two very different standards of review

Most federal civil litigation now passes through a magistrate judge, and Rule 72 sets out what to do when you disagree with one. The deadline is the same either way — 14 days — but everything else depends on whether the matter was dispositive.

That distinction controls the standard of review, and it is the difference between "clearly erroneous or contrary to law" and a fresh look at the question.

Nondispositive matters

Rule 72(a):

When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.

Four things follow.

The magistrate judge decides. On a nondispositive matter the referral is to "hear and decide," and the output is an order — not a recommendation.

Fourteen days from service, and the consequence of missing it is stated in the rule: "a party may not assign as error a defect in the order not timely objected to." That is a forfeiture on appeal, not merely before the district judge.

The district judge must consider timely objections. Not may.

But the standard is deferential: "clearly erroneous or contrary to law." Clearly erroneous applies to the factual findings, contrary to law to the legal conclusions. It is not a second argument on the merits, and framing it that way wastes the objection.

Discovery orders, scheduling decisions, protective orders and most sanctions rulings fall here.

Dispositive matters and prisoner petitions

Rule 72(b)(1): a magistrate judge assigned without the parties' consent to hear a pretrial matter dispositive of a claim or defense, or a prisoner petition challenging conditions of confinement, must promptly conduct the required proceedings.

A record must be made of all evidentiary proceedings and may, at the magistrate judge's discretion, be made of any other proceedings. The magistrate judge must enter a recommended disposition, including, if appropriate, proposed findings of fact. The clerk must immediately serve a copy on each party as provided in Rule 5(b).

Note what changes: the output is a recommended disposition, not an order. The magistrate judge proposes; the district judge decides.

Rule 72(b)(2) — objections:

Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy. Unless the district judge orders otherwise, the objecting party must promptly arrange for transcribing the record, or whatever portions of it the parties agree to or the magistrate judge considers sufficient.

Three requirements worth separating out.

"Specific written objections." General objections — a restatement of the original brief, or a blanket assertion that the recommendation is wrong — do not engage the review the rule provides.

A response is permitted, on its own 14 days.

And the objecting party pays for the transcript. That obligation is easy to overlook and it is on the objector by default, subject to the district judge ordering otherwise.

Rule 72(b)(3) — resolving objections:

The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Two limits on that generous standard.

"Any part … that has been properly objected to." De novo review is available only for what you objected to, and only if the objection was proper. Parts not objected to are not reviewed de novo.

And it is de novo determination, not a de novo hearing. The district judge may receive further evidence, but is not required to.

The two tracks, side by side

Consent: Rule 73

Rule 72 covers referrals without consent. Rule 73 is the other path.

Rule 73(a): when authorised under 28 U.S.C. § 636(c), a magistrate judge may, "if all parties consent, conduct a civil action or proceeding, including a jury or nonjury trial." A record must be made under § 636(c)(5).

Consent means the magistrate judge is the trial judge, with the appeal going to the court of appeals rather than to a district judge.

Rule 73(b)(1) — the procedure: where a magistrate judge has been designated to conduct civil actions, "the clerk must give the parties written notice of their opportunity to consent." To signify consent, "the parties must jointly or separately file a statement consenting to the referral."

And the judges are kept out of it:

A district judge or magistrate judge may be informed of a party's response to the clerk's notice only if all parties have consented to the referral.

That is the safeguard that makes consent meaningful. Neither judge learns who declined unless everyone agreed.

Rule 73(b)(2) — reminders: a district judge, magistrate judge or other court official "may remind the parties of the magistrate judge's availability, but must also advise them that they are free to withhold consent without adverse substantive consequences."

So a reminder is permitted; pressure is not, and the advice about withholding consent is mandatory whenever a reminder is given.

Practical sequence

1. Read the caption of what you received. An order is Rule 72(a); a report and recommendation is Rule 72(b).
2. Calendar 14 days from service, either way.
3. For a Rule 72(a) order, argue clear error or legal error — not the merits afresh.
4. For a Rule 72(b) recommendation, object specifically, part by part, and arrange the transcript.
5. If you are responding to someone else's objections, you have your own 14 days.
6. Object to everything you want reviewed. Silence on a part forfeits de novo review of it — and under Rule 72(a) forfeits the point on appeal altogether.

How this fits the wider deadline scheme

Rule 72's 14 days sit alongside a cluster of other 14-day federal deadlines — the Rule 26(f) report, the Rule 14 impleader window, the Rule 54(d)(2) fee motion, and the Rule 59(c) response to new-trial affidavits.

Rule 6(b)(1) lets the court extend most periods for good cause, and Rule 6(b)(2) lists the ones it cannot extend — Rules 50(b) and (d), 52(b), 59(b), (d) and (e), and 60(b). Rule 72 is not on that list, so an extension of the objection period is available on a proper application. The cross-jurisdiction guide on computing federal deadlines covers Rule 6.

That said, the Rule 72(a) forfeiture language — "may not assign as error a defect in the order not timely objected to" — makes an unextended late objection expensive. Ask before the 14 days run, not after.

A short checklist

1. Identify which subdivision applies from what the magistrate judge issued.
2. Diary 14 days from service, and note that Rule 6(b) extensions are available if you ask in time.
3. Under Rule 72(a), frame the objection as clear error or contrary to law. The district judge is not rehearing the motion.
4. Under Rule 72(b), be specific and comprehensive. Only parts properly objected to get de novo review.
5. Arrange the transcript if you are the objecting party on a dispositive recommendation.
6. Use your response window if the other side objects — it is a separate 14 days.
7. On a consent question, remember you may decline without adverse consequences, and the judges will not be told unless everyone consents.

Where these rules live

• FRCP 5 — Serving and filing pleadings and other papers
• FRCP 6 — Computing and extending time
• FRCP 16 — Pretrial conferences; scheduling; management
• FRCP 26 — Duty to disclose; general provisions governing discovery
• FRCP 53 — Masters
• FRCP 56 — Summary judgment
• FRCP 72 — Magistrate judges: pretrial order
• FRCP 73 — Magistrate judges: trial by consent; appeal

The statutory framework for magistrate judges is in 28 U.S.C. § 636, which this site doesn't reproduce, and individual districts have their own referral practices. This page explains what the rules say. It isn't legal advice.