Pacemaker Diagnostic Clinic of America, Inc., a Corporation, Plaintiff- Cross-Appellee v. Instromedix, Inc., a Corporation, Cross-Appellant

We consider this case en banc to address an issue important to the administration of justice in the federal courts. The question is the constitutionality of the section of the Federal Magistrate Act of 1979 which allows magistrates to conduct civil trials with *540 the consent of all parties. 28 U.S.C. § 636 (c) (Supp. V 1981).

Pacemaker, Inc., brought this suit alleging patent infringement against Instromedix, Inc. Instromedix counterclaimed for a declaration of the patent’s invalidity. The parties, pursuant to 28 U.S.C. § 636 (c) and local rules of the District of Oregon, elected to try the case before a United States Magistrate. The magistrate held the patent valid, but not infringed. Both parties appealed, and a panel of this court, sua sponte, raised the question of the constitutionality of trial by a magistrate, an officer not accorded the protections of Article III, section 1, of the Constitution. The panel held the statute invalid and vacated the judgment, Pacemaker Diagnostic Clinic v. Instromedix, Inc., 712 F.2d 1305 (9th Cir.1983), and the court has convened en banc to reconsider the case. Pacemaker Diagnostic Clinic v. Instromedix, Inc., 718 F.2d 971 (9th Cir. 1983)…

dissenting:

I join Judge Schroeder’s incisive dissent. I write separately only to add that, in my view, magistrates should be made Article III judges.

Although they hold different titles, federal judges and federal magistrates vow to perform their respective duties pursuant to the same oath of office which includes the obligation to “administer justice without respect to person, and [to] do equal right to the poor and to the rich.” 1

Under 28 U.S.C. § 686 (c) (Supp. V. 1981), the federal district courts, with Congress’s approval, have delegated to federal magistrates a significant share of the judicial business of the United States that, although it involves ordinary people, is very important. Magistrates typically hear cases involving entitlement to social security benefits, deportation orders under the immigration laws, discharges from the civil and military services, civil rights claims arising under both the Constitution and 42 U.S.C. §§ 1981-1986 (1976), and petitions for habe-as corpus. See, e.g., C.D.Cal.Gen. Order No. 194, R. 1.0. Even though magistrates perform important judicial functions, the mantle of independence essential to Article III decisionmaking has been…

725 F.2d 537 PACEMAKER DIAGNOSTIC CLINIC OF AMERICA, INC., a corporation, Plaintiff- Appellant, Cross-Appellee, v. INSTROMEDIX, INC., a corporation, Defendant-Appellee, Cross-Appellant. Nos. 82-3152, 82-3182. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc Nov. 15, 1983. Decided Feb. 16, 1984. Michael A. Lechter, Sherman O. Parrett, Cushman, Darby & Cushman, Washington, D.C., Jerard S. Weigler, James N. Gardner, Lindsay, Hart, Neil & Weigler, Portland, Or., for plaintiff-appellant, cross-appellee. J. Pierre Kolisch, Jon M. Dickinson, Kolisch, Hartwell, Dickinson & Stuart, Portland, Or., Charles H. Turner, U.S. Atty., Portland, Or., Michael F. Hertz, J. Paul McGrath, Peter R. Maier, Dept. of Justice, Washington, D.C., for defendant-appellee, cross-appellant. Appeal from the United States District Court for the District of Oregon. Before BROWNING, SNEED, KENNEDY, TANG, SCHROEDER, FARRIS, PREGERSON, ALARCON, POOLE, NELSON, and CANBY, Circuit Judges. KENNEDY, Circuit Judge: 1 We consider this case en banc to address an issue important to the administration of justice in the federal courts. The question is the constitutionality of the section of…