How to object to a magistrate's report and recommendation

In the federal system, district judges (who serve for life) may ask the magistrate judges (who serve a fixed term) to issue a ruling on a motion that the district court can review and either approve, reject, or modify the ruling. That increases attorneys' work, as they first have to present their arguments to the magistrate judge and then challenge that ruling when it reaches the district judge. We also have a set of rules guiding how you can make the objections. This case tells us how it all works, and the Second Circuit clarifies what lawyers can and cannot do in objecting to the magistrate's ruling.

The case is Nambiar v. Central Orthopedic Group, LLP, issued on October 28. I cover the merits of plaintiff's employment discrimination claims at these links. This time around, I talk about the magistrate's report and the district court's review of the same.

Under the rules, if the magistrate's report is objectionable, the lawyer has to file objections with the district judge, which reviews the magistrate's decision de novo, or from scratch without any deference to the magistrate judge. If you don't file an objection, then you waive your right to bring an appeal to the Second Circuit on those issues. A proper objection cannot raise issues that were not presented to the magistrate judge. But some trial courts in the Second Circuit hold that you cannot simply raise the same issues to the district court that you presented to the magistrate judge. The Second Circuit (Merriam, Lynch and Kahn) rejects that approach, noting that this would "place[] a litigant in an impossible position." While the party cannot raise new arguments for the first time in challenging the magistrate's report, the rule that she cannot raise the same arguments in that capacity may leave that party with nothing to say at all. Here is the proper approach:

a litigant objecting to an R&R may not simply rest on the briefs considered by the magistrate judge; she must lodge a specific objection to some specific aspect of the R&R. But the objection not only may, but often must, repeat arguments that were previously raised. When a timely filed objection raises and properly briefs arguments previously rejected by the magistrate judge, the district judge must review those arguments de novo. The District Judge here, understandably following an approach that has gone unchecked for some years, rejected Nambiar's proper objections to certain portions of the R&R on the ground that the same arguments raised in the objection were also made to the Magistrate Judge. That was error. Because Nambiar properly objected to the R&R's findings as to her claims of sex discrimination and aiding and abetting discrimination, the District Judge should have reviewed de novo the Magistrate Judge's recommended disposition of those claims.