OBJECTION TO MAGISTRATE'S “ORDERS”

                                                          UNITED STATES DISTRICT COURT
                                                           MIDDLE DISTRICT OF FLORIDA
                                                                 TAMPA DIVISION


UNITED STATES OF AMERICA,            )
                                     )        Case No.  8:08-CV-0xxx
                       Plaintiff     )
                                     )
   v.                                )                        		       
                                     )        OBJECTION TO MAGISTRATE'S “ORDERS”                                        
Jeanne Patriot                       )        / REPORT AND RECOMMENDATION
                                     )			
                       Defendant     )
_____________________________________)

Comes now Jeanne Patriot, Defendant, to file in this court of record, her OBJECTION TO MAGISTRATE'S “ORDERS” pursuant to the following facts and reasons:

I. STATUTORY AUTHORITY AND FEDERAL RULES OF CIVIL PROCEDURE

A. The Federal Rules of Civil Procedure (FRCP) are rules governing civil procedure in United States district (federal) courts, that is, court procedures for civil suits. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved by the United States Congress.

B. The Federal Rules of Civil Procedure were completely rewritten, effective December 1, 2007, under the leadership of a committee headed by law professor Bryan A. Garner, for the avowed purpose of making them easier to understand. The style amendments were not intended to make substantive changes in the rules. If this court is using any other rules of civil procedure, please so advise.

C. At issue in this case, at the least, are two statutory provisions dealing with the parameters of a magistrate's authority to resolve certain issues, Fed.R.Civ.P. 73 and 28 U.S. Sec. 636.

D. Rule 73. Magistrate Judges: Trial by Consent; Appeal

(a) Trial by Consent.

When authorized 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 in accordance with 28 U.S.C. § 636(c)(5).

(b) Consent Procedure.

(1) In General.

When a magistrate judge has been designated to conduct civil actions or proceedings, the clerk must give the parties written notice of their opportunity to consent under 28 U.S.C. § 636(c). To signify their consent, the parties must jointly or separately file a statement consenting to the referral. 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.

(2) Reminding the Parties Regarding Consenting.

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.

(3) Vacating a Referral.

On its own for good cause — or when a party shows extraordinary circumstances — the district judge may vacate a referral to a magistrate judge under this rule.

In accordance with 28 U.S.C. § 636(c)(3), an appeal from a judgment entered at a magistrate judge's direction may be taken to the court of appeals as would any other appeal from a district-court judgment.

E. 28 U.S.C. § 636(b)(2), “a judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of Rule 53 (b) of the Federal Rules of Civil Procedure for the U.S. district courts.” 28 U.S. Sec. 636. The Federal Magistrate Act of 1979 (Act) empowers full-time magistrate judges to conduct “any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case,” as long as they are “specially designated … by the district court” and acting with “the consent of the parties.” 28 U.S.C. § 636(c)(1).

F. This statute, [28 U.S.C. § 636(b)], however, does NOT authorize a magistrate to enter final judgment. Only a district court can make a magistrate's decision final, and therefore appealable. Kendall v. Davis 569 F.2d 1330 (5th Cir. 1978).

G. Conduct of Trial and Disposition of Civil Cases Upon Consent of the Parties -- 28 U.S.C. § 636(c)(1) states:

(1) Upon the consent of the parties, a full-time United States magistrate judge or a part-time United States magistrate judge who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves. Upon the consent of the parties, pursuant to their specific written request, any other part-time magistrate judge may exercise such jurisdiction, if such magistrate judge meets the bar membership requirements set forth in section 631 (b)(1) and the chief judge of the district court certifies that a full-time magistrate judge is not reasonably available in accordance with guidelines established by the judicial council of the circuit. When there is more than one judge of a district court, designation under this paragraph shall be by the concurrence of a majority of all the judges of such district court, and when there is no such concurrence, then by the chief judge.

H. Notification of the parties of the availability of a magistrate judge to exercise such jurisdiction, 28 U.S.C. § 636(c)(2) states:

If a magistrate judge is designated to exercise civil jurisdiction under paragraph (1) of this subsection, the clerk of court shall, at the time the action is filed, notify the parties of the availability of a magistrate judge to exercise such jurisdiction. The decision of the parties shall be communicated to the clerk of court. Thereafter, either the district court judge or the magistrate judge may again advise the parties of the availability of the magistrate judge, but in so doing, shall also advise the parties that they are free to withhold consent without adverse substantive consequences. Rules of court for the reference of civil matters to magistrate judges shall include procedures to protect the voluntariness of the parties' consent.

I. Notwithstanding any provision of law (or rule) to the contrary, subsection 636(c)(1) clearly mandates the consent of all the parties: “Upon the consent of the parties ...” (phrase is repeated twice). Notwithstanding any provision of law (or rule) to the contrary, subsection 636(c)(2) clearly mandates the consent of all the parties: “[P]arties ... are free to withhold consent without adverse substantive consequences.” “Rules of court ... shall include procedures to protect the voluntariness of the parties’ consent.” [emphasis added]

J. Officers serving under this chapter shall conform to rules promulgated by the Supreme Court; 28 U.S.C. 636(d) states:

The practice and procedure for the trial of cases before officers serving under this chapter shall conform to rules promulgated by the Supreme Court pursuant to section 2072 of this title.

TITLE 28 - PART V - CHAPTER 131 - § 2072. Rules of procedure and evidence; power to prescribe rules

(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.

(c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.

(TITLE 28 - PART IV - CHAPTER 83 - § 1291. Final decisions of district courts

The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court.

II. FACTUAL ALLEGATIONS

A. The Defendant was not noticed, nor did she consent to a magistrate judge's hearing and determination of this civil matter pursuant to 28 U.S.C. 636 (c).

1. Defendant received a “NOTICE TO SHOW CAUSE” from Magistrate Judge, Mark A. Pizzo, stating that a hearing was scheduled before District Judge James D. Whittemore on October 2, 2008 relative to Plaintiff’s Petition For Judicial Approval Upon a Principal Residence;

2. Defendant responded within the time allowed with her objection to the said Petition;

3. Council for the Plaintiff contacted Defendant by telephone to reschedule said hearing since Revenue Officer Bryan Morris (pseudonym) had a scheduling conflict;

4. By mutual consent, said hearing was rescheduled for October 22, 2008.

5. Council for the Plaintiff contacted Defendant by telephone to reschedule said hearing saying that District Judge James D.Whittemore had a scheduling conflict for October 22, 2008.

6. By mutual consent, said hearing was rescheduled for October 30, 2008;

7. Defendant received a NOTICE OF HEARING signed by /s/ Jennifer Faggion, Law Clerk to Honorable Mark A. Pizzo, stating that said hearing was to be heard on October 30, 2008. [Exhibit A].

8. Defendant was never notified that said hearing had been then slated to be heard by Mark A. Pizzo, Magistrate Judge. No other notice was given, and Defendant did not know until she showed up for said hearing, that hearing was actually to be heard by Mark A. Pizzo, Magistrate Judge, nor was any option given to Defendant the effect that she even had a choice in the matter.

B. Mark A. Pizzo, Magistrate Judge seemed to be in a state to rush the hearing to judgement. He interrupted Defendant more than once during her statements, saying that his jurisdiction was very narrow, and while she attempted to provide her side of the matter, she felt hampered by his impatience to get on with the matter. Subsequently, the Magistrate Judge, Mark A. Pizzo, then stated that he was granting Plaintiff’s Petition for Judicial Approval for Levy Upon a Principal Residence.

C. Mark A. Pizzo, Magistrate Judge, signed and issued Order granting Petition for Judicial Approval for Levy Upon a Principal Residence on November 3, 2008 [Exhibit B].

D. Defendant filed on November 12 her Motion to Vacate Order…Part 1, and on November 17, her Motion to Vacate Order, Part 2. In these motions, Defendant detailed several issues of law and authority, including one of the major contentions to the Order, which was that a Magistrate Judge does not have the authority to conduct “any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, without “the consent of the parties,” pursuant to 28 U.S.C. § 636(c)(1), for which Defendant did not give consent.

E. District Judge, James D. Whittemore, issued ORDER referring the motions to Magistrate Judge Mark a Pizzo for disposition [Exhibit C].

F. Mark A. Pizzo, Magistrate Judge, responded by signing and issuing yet another ORDER, this one Denying Defendants Motions to Vacate Magistrate’s original ORDER [Exhibit D].

G. Therefore, Defendant hereby files her Objection to the ORDER of the Magistrate denying her Motions to Vacate on the grounds that the Magistrate did not have her consent to conduct hearing, and therefore, does not have the authority, under 28 U.S.C. § 636(c)(1) to issue ORDERS.

H. Defendant poses the one overriding question to the Court at this time, and that is, By what legal authority does the Magistrate act in issuing the ORDERS in question?

III. CASE PRECEDENCE

A. “The Supreme Court stated that the authority granted to magistrate judges under the Federal Magistrates Act is to be construed narrowly.” U.S. v. Desir, 257 F.3d 1233, 1236(11th Cir. 2001).

B. Federal magistrate judges are creatures of statute, and so is their jurisdiction. Unlike district judges, they are not Article III judicial officers, and they have only the jurisdiction or authority granted to them by Congress, which is set out in 28 U.S.C. § 636. As applicable here where the parties did not consent to proceeding before the magistrate judge, see § 636(c)(1), the district court may designate a magistrate judge to consider various matters. See § 636(b). These matters are generally categorized as `dispositive' or `non-dispositive,' and a magistrate judge's authority with respect to each category is different: Magistrates may issue orders as to non- dispositive pretrial matters, and district courts review such orders under a clearly erroneous or contrary to law standard of review. 28 U.S.C. § 636(b)(1)(A). While magistrates may hear dispositive motions, they may only make proposed findings of fact and recommendations, and district courts must make de novo determinations as to those matters if a party objects to the magistrate's recommendations. Id. § 636(b)(1)(B), (C). First Union Mortgage Corp., v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (internal citations, quotations, and brackets omitted).

C. “We need not decide whether there was a proper reference to the magistrate judge under § 636(b) and the District of Colorado local rules because even if there was, the magistrate judge had no authority to enter a final order on the matter at issue here”. Jonathan Guy, Et. Al. V. William T. Beierwaltes And Lynda L. Beierwaltes,United States Court Of Appeals Tenth Circuit (2006).

D. “Title 28 U.S.C. 636(c) confers jurisdiction on a magistrate judge to "conduct any or all proceedings in a jury or non jury civil matter and order the entry of judgment in the case" when (1) the magistrate judge has been "specially designated to exercise such jurisdiction by the district court," and (2) the parties consent to the magistrate judge's authority. See also Alaniz v. California Processors, Inc., 690 F.2d 717, 720 (9th Cir. 1982)…We must determine whether the parties provided effective consent.” Kofoed, v. International Brotherhood Of Electrical Workers, Local 48 237 F.3d 1001 (9th Cir. 2001)

E. “While 636(c) does not specify the precise form or timing of the parties' consent, we require that the record reflect the parties' "clear and unambiguous expression of consent" in order to protect the voluntariness of consent. Alaniz, 690 F.2d at 720; see also King v. Ionization Int'l, Inc. , 825 F.2d 1180, 1185 (7th Cir. 1987) (noting that 636(c) is silent as to the form of consent). Rule 73(b) of the Federal Rules of Civil Procedure requires that the parties execute and file a written consent form, also to protect the voluntariness of the parties' consent. See Fed. R. Civ. P. 73(b) advisory committee note. We also will not infer consent from the conduct of the parties, even where a local rule or general order provides for such inference. See Hajek, 186 F.3d at 1109 (local rule); Nasca, 160 F.3d at 579 (general order)…Where the magistrate judge has not received the full consent of the parties, he has no authority to enter judgment in the case, and any purported judgment is a nullity.” See Hajek, 186 F.3d at 1108; Aldrich v. Bowen, 130 F.3d 1364, 1365 (9th Cir. 1997).” Kofoed, v. International Brotherhood Of Electrical Workers, Local 48 237 F.3d 1001 (9th Cir. 2001)

F. Lack of consent and defects in the referral order, “…under §636(c)(1), lack of consent and defects in the referral order are nonwaivable jurisdictional errors, that §636(c) consent must be express, and that petitioners’ post judgment consent was inadequate under the Act… It is true that §636(c)(2) and Federal Rule of Civil Procedure 73(b), which establish the procedures for a §636(c)(1) referral, envision advance, written consent communicated to the clerk. This procedure is by no means just advisory, and district courts are bound to adhere strictly to it. But the text and structure of §636(c) as a whole indicate that a defect in the referral under §636(c)(2) does not eliminate that magistrate judge’s “civil jurisdiction” under §636(c)(1) as long as the parties have in fact voluntarily consented. So far as concerns full-time magistrate judges, §636(c)(1), which is the font of magistrate judge authority, speaks only of “the consent of the parties,” without qualification as to form, and §636(c)(3) similarly provides that “[t]he consent of the parties allows” a full-time magistrate judge to enter a final, appealable judgment of the district court. (Supreme Court Of The United States Roell, et.al. v. Withrow CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, 2003)

G. When a party files timely written objections to a magistrate judge's report, the district court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. 636(b)(1)(C); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991)("De novo review is statutorily and constitutionally required....").

H. Findings by a magistrate made pursuant to this provision are NOT final, but “are subject to de novo determination by the district court judge.” Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352, 355, n.3 (5th Cir4. 1980).”

I. Any party is free to withhold consent to magistrate judge jurisdiction without adverse consequences. 28 U.S.C. 636(c)(2); Rule 73(b), Fed.R.Civ.P.; Andersonv. Woodcreek Venture Ltd., 351 F.3d 911, 913-14 (9th Cir. 2003) (pointing out that consent is the "touchstone of magistrate judge jurisdiction" under 28 U.S.C. §636(c). “A party to a federal civil case has, subject to some exceptions, a constitutional right to proceed before an Article III judge.” Dixon v. Ylst, 990 F.2d 478, 479 (9th Cir. 1993) (citing Pacemaker Diagnostic Clinic of Am. Inc. v. Instromedix, Inc., 725 F.2d 537, 541 (9th Cir. 1984) (en banc)).

J. Glover v. Alabama Dept. of Correction, 660 F. 2d 120, 122 (5th Cir. Unit B Oct. 1981). Furthermore, the magistrate judge’s order is not final. See Title 28 U.S.C.§ 636 (b),(c) & § 1291; and Perez-Prego v. Alachua County Clerk of Court, 148 F. 3d 1272, 1273 (11th Cir. 1998).

K. Under Title 28 U.S.C.§ 636(b)(2), “a judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of Rule 53 (b) of the Federal Rules of Civil Procedure for the U.S. district courts.” This statute, however, does NOT authorize a magistrate to enter final judgment. E.g., Kendall v. Davis 569 F.2d 1330 (5 th Cir. 1978).Under Title 28 U.S.C.§ 636(b)(3), a “magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” Findings by a magistrate made pursuant to this provision are NOT final, but “are subject to de novo determination by the district court judge.” The magistrate has the authority to make a written recommendation to the district court judge who has the authority to sign a final order. Under Title 28 U.S.C.§ 636(c), a recent amendment to the Magistrates Act, a magistrate specifically designated by the district court and presiding only with the consent of the litigants may enter a final judgment

(i)f a magistrate is designated to exercise civil jurisdiction under paragraph (1) of this subsection, the clerk of court shall, at the time the action is filed, notify the parties of their right to consent to the exercise of such jurisdiction .... Rules of the court for the reference of civil matters to magistrates shall include procedures to protect the voluntariness of the parties' consent.

L. “The Supreme Court has stated that the Constitution requires that the judicial power of the United States be vested in courts having judges with life tenure and undiminishable compensation in order to protect judicial acts from executive or legislative coercion. O'Donoghue v. United States, 289 U.S. 516, 531, 53 S.Ct. 740, 743, 77 L.Ed. 1356 (1933). A decision without consent by a magistrate, a non-Article III judge, would undermine this objective of the Constitution and might violate the rights of the parties. Willie James Glover, Plaintiff-Appellee Cross-Appellant, v. Alabama Board of Corrections, Et Al., Defendants, James Towns, Defendant-Appellant Cross-Appellee., 660 F.2d 120 (5th Cir. 1981)

Wherefore, the Defendant prays that the District Court review the “ORDERS” of the Magistrate and Defendant’s filings in this case de novo, and find all of the judicial notices and objections with merit sufficient to overturn the Magistrate's “ORDERS.”

Respectfully submitted this 25th Day of November, 2008.

_____________________________

CERTIFICATE OF SERVICE

I hereby certify that on or about this date, I mailed a copy of this OBJECTION TO MAGISTRATE'S “ORDERS” / REPORT AND RECOMMENDATION to the following parties by First Class Mail:

Robert E. O’Neill                Stephen C. Dowdell
United States Attorney           Trial Attorney, Tax Division		
Middle District of Florida       U.S. Department of Justice
400 N. Tampa Street, Suite 3200  Post Office Box 14198
Tampa, Florida 33602             Ben Franklin Station
                                 Washington, D.C. 20044

Date: November 25th, 2008

Jeanne Patriot
Tampa, FL 33603