Sherwin A. Brook v. J. Lawrence McCormley, et al.

A panel of the United States Court of Appeals for the Ninth Circuit unanimously held that a federal district judge, on de novo review of a magistrate’s report and recommendation under the Federal Magistrates Act, 28 U.S.C. § 631 et seq., may refuse to consider a motion to certify questions of state law to a state’s supreme court solely because the motion was not first presented to the magistrate. The ruling arises in the context of a longfestering conflict among the circuits over whether a district judge may refuse to consider new arguments in objections to a magistrate’s report and recommendation that directly relate to issues that were presented to the magistrate. The Ninth Circuit treated the motion as if it were itself an “argument,” even though it simply sought certification of the very state law issues that had been presented to, and addressed by, the magistrate. It ignored this Court’s strong policy favoring the use of certification, at almost any stage of litigation, and its own prior decisions imposing an obligation on district judges, and itself, to consider certification even if it feels its interpretation of state law is correct. The question presented is: Does 28 U.S.C. § 636(b)(1)(C) allow a district judge, on de novo review of objections to a magistrate’s report, to refuse to consider a motion to certify an issue of state law that was presented to the magistrate, on the ground that such a motion is itself a “new argument” that was not first presented to the magistrate who, in most, if not all, cases, has no authority under state certification statutes to grant it?