recognized, the magistrate in this district is not empowered to decide the motion for summary judgment, but rather, this decision rests with a United States District judge. The Government's concern appears to be largely with the wording of the order of reference since the Government states that the order does not expressly indicate whether the district court will independently review the administrative record before making its final decision. The Government, in effect, argues that since in the order of reference the court has not indicated that it will not abdicate its ultimate adjudicatory responsibilities, the Government has no guarantee that it will not do so.
The Government's uneasiness with the wording of an order is a flimsy basis on which to mount a constitutional attack. This court will make an independent review of the record and weigh the magistrate's report and recommendations against such review. Since at least one court of appeals decision has raised the question that a court's order of adoption of the report of the magistrate in a habeas corpus action did not indicate whether an independent review of the record had been made,
this court has recently adopted the practice of stating in the order of adoption that an independent review of the record has been made. This practice is in accordance with a similar practice followed by the Supreme Court of the United States when it has occasion to refer a case to a special master, where much more is involved than the review of a developed administrative record, and where the Supreme Court has thus relied on the report of its master.
The true value of the magistrate's report in a Social Security case is that it facilitates, but does not supplant the court's decision. In his report, the magistrate organizes the various matters involved in the action, including a statement of the issues involved, a statement of the vocational and educational background of the claimant, a summary of the administrative proceedings, a statement of the findings of the Secreary with respect to the issues involved, a summary of the evidence, an analysis of the evidence in the light of established law, and an analysis of any special legal arguments involved. With this data so organized, the court is in a position to review the record against the magistrate's report and to gauge the propriety of his recommendations accordingly.
Insofar as the type of motion is concerned, the magistrate in this district has conducted preliminary evaluation of motions for summary judgment in Civil Rights cases, and at least one such case, the court's order adopting the magistrate's report has been upheld. Schartner v. Copeland, 3 Cir. 1973, judgment order listed in 478 F.2d 1399.
Finally, the Government's argument that the referral of a Social Security action to a United States magistrate interjects an extra level into the judicial review process, thereby placing an added burden on the litigants, is specious. The Government argues that even if the court makes an independent review of the record, the magistrate is authorized court, and that whether findings are to prepare a recommendation to the prepared or not, "we assume that the magistrate in his proposed order of decision will in some manner evaluate the evidence contained in the administrative record." The Government argues, therefore, that if the magistrate's proposed decision is in favor of the Government, the plaintiff will have the burden of overturning not only the evaluation of the evidence by the Secretary, but also the evaluation of the evidence by the magistrate, as well.
The magistrate's evaluation of the evidence, and hence, the court's evaluation, if it agrees with the magistrate, is not made with a view toward substituting his evaluation for that of the Secretary, but rather, goes only to the question of its substantiality under established legal standards. Moreover, before the Social Security action even reaches the court, a plaintiff has the "burden" of overturning many levels of evaluation of administrative review. His application is first evaluated by a disability examiner and when it is denied, it is then evaluated upon reconsideration. When that is denied, he receives a hearing. If the administrative law judge's evaluation and decision is adverse to him, he must seek to have that decision overturned by the Appeals Council. If the Appeals Council, either in its own decision or by permitting the decision of the administrative law judge to stand, finds against the claimant, we then have a decision of the Secretary which is reviewable by the courts. On court review, the United States Attorney files a brief giving his views on the evidence. It is, however, only the decision of the Secretary which is reviewable, in the context of the substantiality of the evidence on which it was based, even though it has been reached after many hands have been laid on the decision. Similarly, it is only the decision of the court which the parties to a Social Security action must overturn. When this court, after a review of the record, adopts the magistrate's report, that is the decision of the district court, and not of the magistrate.
This court sees nothing innovative with respect to permitting a magistrate to express his views on the substantiality of the evidence. In O'Shea v. United States, supra, in the context of a magistrate's review of a post conviction relief application and record, the court recognized that the evaluation and conclusions of the magistrate can be of great assistance to the court:
"We do not mean by this that the magistrate, after setting forth all the factors, should not recite his own conclusions; the statute expressly provides for his recommendation. The views of an experienced magistrate as to how the case should be decided can be of great assistance. Indeed, because of the limited, and hence repetitive nature of his jurisdiction, a magistrate may come to have more familiarity with a question than does some individual judge. The report, however, is the primary obligation; his recommendation, secondary."
In this district, practically all arguments on motions for summary judgment in Social Security cases are submitted on briefs. This is apparently due to a recognition by counsel that the court has the responsibility to review the entire record, pursuant to 42 U.S.C.A. § 405(g), and their contentions, therefore, can be adequately argued on briefs.
While a magistrate performs many important discretionary functions, particularly in the criminal area, his assignment in a Social Security case, aside from regulating procedural steps necessary to bring the matter before the court and preparing and signing a report, closely parallels that which a law clerk would perform if the case were initially handled by the court. If the Government's argument were to prevail that Social Security cases should be handled by the court alone, then it would seem that to be consistent, it would also have to argue that a law clerk should not be involved in this review process because this would place the burden on the parties to overturn not only the evaluation by the Secretary, but also by the law clerk. The fact of the matter is that the court decides the case, and whether the case is reviewed by a law clerk or by a magistrate under the direction and supervision of the court, it is nevertheless the court's decision. To be sure, a law clerk is subject to more direct and concentrated supervision in the performance of his work. When a Social Security action is involved, however, in the final analysis, the court has before it all of the materials on which the magistrate based his report and recommendations. In O'Shea v. United States, supra, at note 4, the court cited the comments of the Senate Committee on the Judiciary, in its consideration of the then proposed Federal Magistrates Act, regarding the benefits hoped to be gained by having an experienced magistrate assist the court in preliminary review of post conviction applications, and these comments seem equally applicable to Social Security cases:
"A qualified, experienced magistrate will, it is hoped, acquire an expertise in examining these [post conviction review] applications and summarizing their important contents for the district judge, thereby facilitating his decisions. Law clerks are presently charged with this responsibility by many judges, but judges have noted that the normal 1-year clerkship does not afford law clerks the time or experience necessary to attain real efficiency in handling such applications. Senate Committee on the Judiciary, 90th Cong., 1st Sess., 'The Federal Magistrates Act,' report on S. 945, Rep. No. 371, at 26 (June 28, 1967)."
In the criminal area, a magistrate exercises much judicial power and discretion in the issuance of search warrants and arrest warrants, the conduct of preliminary and removal hearings, the setting of bail, and other such tasks. A magistrate has the power to exercise criminal trial jurisdiction involving minor offenses and in such cases is empowered to sentence a defendant to pay a fine not to exceed $1,000 or to a jail term not to exceed one year or both, even though under the Federal Magistrates Act, the Congress has ordained that his trial jurisdiction attaches only with the consent of the defendant, and that the magistrate's judgment is reviewable on appeal to the district court. When the Act was under consideration, the question was raised whether only an article III judge could be empowered to conduct trials of Federal criminal offenses, including minor offenses. In the hearings before the Subcommittee on Improvements in Judicial Administration of the Senate Committee on the Judiciary on S. 945, 90th Congress, 1st Sess. May 25, 1967, a memorandum of law prepared by the staff of the Subcommittee regarding "The Constitutionality of Trial of Minor Offenses by United States Magistrates" was inserted into the record at page 246. This memorandum concluded that the trial of minor offenses by a magistrate does not conflict with the Constitution, and that as a matter of constitutional history, the exercise of such power derives its justification either from the officer's status as a court appointee, the consent of the litigants, the availability of an appeal to an article III court, or a combination of these factors. As pointed out in that memorandum, it has not been unusual in the history of our country that Congress has authorized article III judicial power to be exercised through court officers, such as Referees in Bankruptcy (now Bankruptcy Judges), Special Masters, and the former United States Commissioners, and through non-article III tribunals such as state courts, administrative and legislative agencies, and the Tax Court of the United States, provided that such power is exercised under the supervision and control of, or an appeal is available to, an article III court.
This memorandum or an analysis of its subject matter and citations need not be set forth at length, since it is not the purpose of this decision to determine what Congress might have constitutionally done, and the magistrate's trial jurisdiction is not here under attack. Moreover, it is clear that in enacting § 636(b) permitting the assignment of additional duties, Congress intended that such assignments be made under the control and supervision of the court with the ultimate decision reserved to the court. What the memorandum illustrates, however, is that officers appointed by the court have long exercised decision making duties, in some cases subject only to appellate review by the court, a situation which contrasts sharply with a magistrate's review of a Social Security case in which he reports and recommends with the ultimate decision remaining with the court.
The motion to vacate the order of reference will be denied.