author: Justice Stevens Justice Blackmun,

text:
    CALIFORNIA STATE BOARD OF EQUALIZATION v. SIERRA SUMMIT, INC.
    No. 88-681.
    Argued April 19, 1989
    Decided June 12, 1989

      Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, Scalia, and Kennedy, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 854.

      Robert F. Tyler, Supervising Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs was John K. Van de Kamp, Attorney General.

      David Ray Jenkins argued the cause and filed a brief for respondent.

        Benna Ruth Solomon, Beate Bloch, and Thomas D. Goldberg filed a brief for The National Governors’ Association et al. as amici curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the First National Bank of Boston et al. by Frederick A. Richman, M. Randall Oppenheimer, Alan Rader, and Daniel M. Glosband; and for Kenneth L. Spears, Trustee, Hughes Drilling Co. by David W. Lee and Gregory A. McKenzie.

   Justice Stevens

delivered the opinion of the Court.

Enmeshed in a tangled skein of procedural and state-law issues is a ruling on an important federal question that was critical to the decision of the Court of Appeals in this case. The court’s ultimate holding was that a Bankruptcy Court’s injunction against the assessment of a state sales tax upon the proceeds of a trustee’s liquidation sale of an inventory of skis also barred the collection of a use tax from the purchaser’s lessees. In the process of reaching its decision, the Ninth Circuit rejected an argument that a case well known to California bankruptcy lawyers as “Goggin II” was wrongly decided. The three-judge panel that heard the case concluded that it was not within its power — “and not within its heart — to change a rule of this circuit that has been in force for over thirty years.” In re China Peak Resort, 847 F. 2d 570, 572 (1988). Because the rule of “Goggin II” conflicts with the rule applied in other Circuits, and because we have both the power and the duty to resolve the conflict, we granted certiorari. 488 U. S. 992 (1988).

The Goggin cases concerned the attempt by the California State Board of Equalization, petitioner here, to assess sales and use taxes on a bankruptcy liquidation sale. In Goggin I, 191 F. 2d 726 (1951), cert. denied, 342 U. S. 909 (1952), the Court of Appeals for the Ninth Circuit rejected the Board’s attempt to assess a nondiscriminatory sales tax imposed on retailers to a liquidation sale made by a bankruptcy trustee under court order. Although the court based its decision on a construction of state law that excluded the trustee from the definition of retailer, Judge Fee in concurrence wrote that the assessment constituted an unlawful tax upon court processes. Six years later, Judge Fee, writing for the Circuit panel in Goggin II, made those views law. 245 F. 2d 44, cert. denied, 353 U. S. 961 (1957). At issue was a California law which required the bankruptcy trustee to collect and remit use taxes imposed on the use of goods from a liquidation sale on which no sales tax had been paid. The court held the tax unlawful, finding that while it was nondiscriminatory it nonetheless burdened the “essential processes” of the bankruptcy court.

The Goggin opinions were based on two premises, each of which respondent argues supports the judgment here. First, the court held that a tax on liquidation sales places a burden on the federal function of the bankruptcy court and therefore violates principles of intergovernmental tax immunity first recognized in McCulloch v. Maryland, 4 Wheat. 316 (1819). Second, it found that a federal statute specifically authorizing the States to impose taxes on business operations of the bankruptcy trustee negated by implication their power to tax bankruptcy liquidations. Neither argument is persuasive.

The argument that a tax on a bankruptcy liquidation sale places an undue burden on a governmental operation derives from the once established view that a state tax on income or assets an individual receives from a contract with the Federal Government constituted a tax on the contract and thereby imposed a burden on governmental operations. See, e. g., Panhandle Oil Co. v. Knox, 277 U. S. 218 (1928); Collector v. Day, 11 Wall. 113 (1871); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842); Weston v. City Council of Charleston, 2 Pet. 449 (1829). The Court drew a distinction between a tax imposed on a Government agent’s property and a tax imposed on its operations. While the former was permissible, the latter was constitutionally proscribed. See, e. g., Railroad Co. v. Peniston, 18 Wall. 5, 33 (1873); McCulloch v. Maryland, 4 Wheat., at 345; see also James v. Dravo Contracting Co., 302 U. S. 134, 163 (1937) (footnotes omitted) (Roberts, J., dissenting) (“No tax can be laid upon th[e] franchises or operations [of government instrumentalities], but their local property is subject to non-discriminating state taxation”). Thus, although this Court held as early as 1904 that States could impose a property tax on a bankruptcy estate, see Swarts v. Hammer, 194 U. S. 441 (1904), other courts reasonably concluded that the State could not tax the operations of the bankruptcy trustee. See, e. g., In re Flat-bush Gum Co., 73 F. 2d 283 (CA2 1934), cert. denied sub nom. New York v. Arnold, 294 U. S. 713 (1935).

In James v. Dravo Contracting Co., 302 U. S. 134 (1937), however, this Court rejected the distinction between a tax on the property of an agent and a tax on the agent’s operations. With the Court’s decision in Dravo Contracting, “the doctrine of intergovernmental tax immunity started a long path in decline and [it] has now been ‘thoroughly repudiated.’” Cotton Petroleum Corp. v. New Mexico, ante, at 174 (quoting South Carolina v. Baker, 485 U. S. 505, 520 (1988)). “[U]nder current intergovernmental tax immunity doctrine the States can never tax the United States directly but can tax any private parties with whom it does business, even though the financial burden falls on the United States, as long as the tax does not discriminate against the United States or those with whom it deals.” Id., at 523. Absolute tax immunity is appropriate only when the tax is on the United States itself “or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned.” United States v. New Mexico, 455 U. S. 720, 735 (1982).

It is evident that whatever immunity the bankruptcy estate once enjoyed from taxation on its operations has long since eroded and that there is now no constitutional impediment to the imposition of a sales tax or use tax on a liquidation sale. There is no claim, nor could there be, that the tax discriminates against bankruptcy trustees or those with whom they deal. As Judge Augustus Hand observed on similar facts in 1936: “The purchaser at the judicial sale was only required to pay the same tax he would have been bound to pay if he had purchased from anyone else.” In re Leavy, 85 F. 2d 25, 27 (CA2). Nor is the bankruptcy trustee so closely connected to the Federal Government that the two “cannot realistically be viewed as separate entities.” United States v. New Mexico, supra, at 735. The bankruptcy trustee is “the representative of the estate [of the debtor],” 11 U. S. C. § 323(a); cf. Commodity Futures Trading Comm’n v. Weintraub, 471 U. S. 343 (1985), not “an arm of the Government,” Department of Employment v. United States, 385 U. S. 355, 359-360 (1966), and the tax on the estate is an administrative expense of the debtor, not of the Federal Government, 11 U. S. C. § 503(b)(1)(B) (1982 ed. and Supp. V). Cf. Missouri v. Gleick, 135 F. 2d 134, 137 (CA8 1943). For the purposes of absolute tax immunity under the intergovernmental tax immunity doctrine, there is no material distinction between those municipal and state withholding and property taxes on the bankruptcy trustee which we have upheld, see Otte v. United States, 419 U. S. 43, 52-54 (1974); Swarts v. Hammer, 194 U. S., at 444, and the tax on the liquidation sale presented here.

The Goggin courts also based their proscription of state sales and use taxes on an implied prohibition that they found in 28 U. S. C. § 960. The Goggin II court read § 960 as setting forth “the sole area where the state is permitted to impose a tax of any type” and reasoned that because Congress had not specifically granted the States authority to impose sales and use taxes on liquidation, “essential sales in liquidation [were] inevitably free from such imposition.” 245 F. 2d, at 46. That view is contrary to our general approach to claims that the States’ power to tax have been pre-empted and to the plain meaning and legislative history of this particular statutory provision.

Although Congress can confer an immunity from state taxation, see Washington v. United States, 460 U. S. 536, 540 (1983); First Agricultural Nat. Bank v. State Tax Comm’n, 392 U. S. 339 (1968); United States v. City of Detroit, 355 U. S. 466, 474 (1958), we have stated that “[a] court must proceed carefully when asked to recognize an exemption from state taxation that Congress has not clearly expressed,” Rockford Life Ins. Co. v. Illinois Dept. of Revenue, 482 U. S. 182, 191 (1987). See also Oklahoma Tax Comm’n v. United States, 319 U. S. 598, 607 (1943); Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 479 (1939). Section 960 is not such a clear expression of an exemption from state taxation. It was passed in 1934, at the height of the intergovernmental tax immunity doctrine, in response to a Federal District Court decision holding that a bankruptcy receiver operating a gasoline and oil distributing business was not liable as a matter of state law for a state sales tax on motor fuel. See H. R. Rep. No. 1138, 73d Cong., 2d Sess. (1934); S. Rep. No. 1372, 73d Cong., 2d Sess. (1934). Read most naturally, the statute evinces an intention that a State be permitted to tax a bankruptcy estate notwithstanding any intergovernmental immunity objection that might be interposed, cf. Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 813 (1989), and that, as a matter of federal law, “a business in receivership, or conducted under court order, should be subject to the same tax liability as the owner would have been if in possession and operating the enterprise,” Palmer v. Webster and Atlas Nat. Bank of Boston, 312 U. S. 156, 163 (1941). The statute “indicates a Congressional purpose to facilitate — not to obstruct — enforcement of state laws.” Boteler v. Ingels, 308 U. S. 57, 60-61 (1939). Nothing in the plain language of the statute, its legislative history, or the structure of the Bankruptcy Code indicates that Congress intended to exclude taxes on the liquidation process from those taxes the States may impose on the bankruptcy estate.

Eighty-five years ago, in Swarts v. Hammer, 194 U. S. 441 (1904), we held that property in the hands of a bankruptcy trustee was subject to taxation by state and municipal authorities. The appellant in that case argued, in much the same manner as respondent does here, that the transfer of assets to a bankruptcy trustee vested the Federal Government with exclusive control of the bankruptcy estate and that “no other sovereignty, be it State or foreign, is permitted to exercise any power that burdens or in any manner interferes with the distribution prescribed by the act.” Statement, Specification of Error and Argument for Appellant in Swarts v. Hammer, O. T. 1902, No. 238, p. 4. We responded that “[b]y the transfer to the trustee no mysterious or peculiar ownership or qualities are given to the property,” and that “there is nothing in that to withdraw it from the necessity of protection by the State and municipality, or which should exempt it from its obligations to either.” 194 U. S., at 444. If Congress wished to declare otherwise, its intent would have to “be clearly expressed, not left to be collected or inferred from disputable considerations of convenience in administering the estate of the bankrupt.” Ibid. The law that has intervened in the last 85 years, rejecting any distinction between a tax on property and a tax on operations, only gives force to our conclusion that the intergovernmental tax immunity doctrine does not proscribe the tax sought to be assessed here.

We therefore vacate the judgment of the Ninth Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice Blackmun,

with whom Justice Brennan and Justice Marshall join,

dissenting.

The Court today, overturning a 32-year-old Court of Appeals decision, settles a Circuit conflict of ancient vintage and doubtful urgency in a case where the question decided is not properly presented. Although the majority may well be correct that California State Board of Equalization v. Goggin, 245 F. 2d 44 (CA9) (Goggin II), cert. denied, 353 U. S. 961 (1957), is not good law, I respectfully dissent from the majority’s resolution of an issue that is res judicata in this litigation.

The history of this case, notably missing from the majority opinion, has its genesis in 1980, when China Peak Resort, Ltd., filed for Chapter 11 bankruptcy relief. After a variety of proceedings, the receiver, Robert T. Ford, entered into negotiations with Snow Summit Ski Corporation and respondent Sierra Summit, Inc., its wholly owned subsidiary, for the sale of China Peak’s assets. See In re China Peak Resort, 847 F. 2d 570, 571 (CA9 1988). The sale was consummated with the approval of the Bankruptcy Court, and China Peak dismissed its bankruptcy petition. After the sale, petitioner Board attempted to assess the debtor’s prineipals and Mr. Ford for taxes on the sale of China Peak’s assets to Snow Summit. The bankruptcy trustee moved to reopen the bankruptcy case and filed an adversary proceeding on his own behalf and on behalf of the debtor, seeking to bar the tax assessment. After full briefing, the Bankruptcy Court found that the sale amounted to a liquidation of the China Peak estate and that, therefore, a tax on the sale was prohibited by Goggin II. In re China Peak, Advisory Proceeding No. 183-0344 (Bkrtcy. Ct. ED Cal. 1983), App. to Pet. for Cert. A-27. The Bankruptcy Court’s judgment prohibited the Board from assessing or enforcing any tax against the trustee, China Peak, its principals, or other parties “by reason of the sale of the assets of China Peak Resort, Ltd. to Snow Summit.” Id., at A-28. Petitioner did not appeal this 1988 judgment, and it became final when the time for appeal expired later that year.

The instant case arose when petitioner attempted to assess a use tax against Sierra Summit for revenues collected from the rental of ski equipment obtained in the China Peak sale. Sierra Summit claimed that the 1983 order precluded the assessment of these taxes and sought enforcement of the injunction. The Court of Appeals ultimately granted Sierra Summit relief, remanding the case to the Bankruptcy Court with instructions to issue a contempt citation against petitioner. 847 F. 2d, at 572-573.

Petitioner now argues to this Court, and the majority agrees, that Goggin II — the legal basis for the order from which the contempt arises — was wrongly decided. In my view, petitioner’s challenge to the wisdom of Goggin II comes far too late. Petitioner had ample opportunity to challenge the continuing validity of Goggin II in the litigation resulting in the 1983 order, but failed to appeal the adverse judgment. That final judgment, and the legal precedents underlying it, are not now subject to collateral attack in these contempt proceedings. This Court in Federated Department Stores, Inc. v. Moitie, 452 U. S. 394 (1981), wrote:

“A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. ... Nor are the res judicata consequences of a final, unappealed judgment on the merits altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.” Id., at 398.

In Maggio v. Zeitz, 333 U. S. 56 (1948), the Court applied these principles in a situation strikingly similar to the case at hand. There, in an appeal from a contempt order, the losing party attempted to challenge the merits of the judgment that he violated. The Court refused to hear the challenge because, “when completed and terminated in a final order, [the decision] becomes res judicata and not subject to collateral attack in the contempt proceedings.” Id., at 68. The Court elaborated:

“It would be a disservice to the law if we were to depart from the long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. . . . [W]hen [an order] has become final, disobedience cannot be justified by re-trying the issues as to whether the order should have been issued in the first place.” Id., at 69.

None of the cases cited by the majority as authorizing its race to the merits persuades me to set aside these time-honored principles of appellate review. See ante, at 846-847, n. 3. Neither Canton v. Harris, 489 U. S. 378 (1989), nor Oklahoma City v. Tuttle, 471 U. S. 808 (1985), concerned the doctrine of res judicata. Donovan v. City of Dallas, 377 U. S. 408 (1964), did involve review both of a contempt citation and of the order underlying the contempt. In contrast to this case, however, the Court in Donovan did not reach the merits of a final underlying order as part of its review of a contempt citation. Rather, the Court simultaneously granted Donovan’s petition for certiorari seeking review of the underlying State Supreme Court injunction and his separate petition seeking review of the subsequent contempt conviction. Id., at 411. Far from revisiting the merits of an unappealed judgment, the Court in Donovan reviewed the underlying judgment itself in the ordinary course of business.

Accordingly, in my view, the only issue properly before the Court is the application of the 1983 order to the facts underlying the issuance of the contempt citation. Although of obvious importánce to the parties, this wholly case-specific inquiry does not merit this Court’s attention, and I would dismiss the writ of certiorari as having been improvidently granted.

         California State Board of Equalization v. Goggin, 245 F. 2d 44 (CA9), cert. denied, 353 U. S. 961 (1957). The case known as “Goggin I” is California State Board of Equalization v. Goggin, 191 F. 2d 726 (CA9 1951), cert. denied, 342 U. S. 909 (1952).

       Compare In re Hatfield Construction Co., 494 F. 2d 1179 (CA5 1974) (holding that sales tax can be imposed on liquidation sale); In re Leavy, 85 F. 2d 25 (CA2 1936) (same), with In re Cusato Brothers Int’l, Inc., 750 F. 2d 887 (CA11) (holding that bankruptcy trustee is not liable for excise taxes), cert. denied sub nom. Florida v. Great American Bank of Broward County, 472 U. S. 1010 (1985). See also In re Warmings A. G. Food Center, 50 B. R. 748 (Bkrtcy. Ct. Me.), summarily aff’d, 782 F. 2d 1024 (CA1 1985); In re Sunrise Constmction Co., 39 B. R. 668 (Wyo. 1984); In re Hughes Drilling Co., 75 B. R. 196 (Bkrtcy. Ct. WD Okla. 1987); In re Hubs Repair Shop, Inc., 28 B. R. 858 (Bkrtcy. Ct. ND Iowa 1983) (all holding that States can tax liquidation sales), and In re Sheldon’s Inc. of Maine, 28 B. R. 568 (Bkrtcy. Ct. Me. 1983); In re Rhea, 17 B. R. 789 (Bkrtcy. Ct. WD Okla. 1982) (holding that States cannot tax liquidation sales).

       In its brief on the merits, respondent argues that the judgment of the Bankruptcy Court that States may not impose taxes on a liquidation sale is res judicata and therefore not properly before us. Petitioner argued that the Goggin cases were incorrectly decided before the Court of Appeals, see Brief for Appellant in No. 87-2542 (CA9), pp. 28-33, however, and that court reached the merits of the question. At no time previous to its brief on the merits before this Court did respondent argue that the question might not be properly presented. In these circumstances we may decide the question decided by the Court of Appeals. See Canton v. Harris, 489 U. S. 378, 383-385 (1989); Oklahoma City v. Tuttle, 471 U. S. 808, 815-816 (1985); see also Donovan v. City of Dallas, 377 U. S. 408, 414 (1964).

       Judge Hand added:
      “What the trustee is really complaining of is, not that a burden has been imposed upon the exercise of his functions, but of his inability to sell to a purchaser who would be exempt from a tax and because of such an exemption would pay a higher price to him than would ordinarily be paid for the goods sold. It seems unreasonable to treat the absence of an exemption from taxes as a burden upon the normal exercise of a governmental function.” 85 F. 2d, at 27.

       Under 11 U. S. C. §346(c)(2) (1982 ed., Supp. V), the trustee is required to “make any tax return otherwise required by State or local law to be filed by or on behalf of” a corporation or partnership in bankruptcy “in the same manner and form as such corporation or partnership, as the ease may be, is required to make such return.”
      It follows, a fortiori, that when, as in this case, the debtor is permitted to remain in possession, the same duties may be imposed on the debtor-in-possession. See 11 U. S. C. § 1107(a) (1982 ed., Supp. V) (debtor-in-possession shall perform all the functions and duties of trustee).

       The commentators are in agreement. See Wurzel, Taxation During Bankruptcy Liquidation, 55 Harv. L. Rev. 1141, 1166-1169 (1942) (footnote omitted) (“[TJhere is no implied immunity of a federal instrumentality from a state tax that is general and nondiscriminatory if its effects upon the Federal Government are merely ‘incidental.’ A general and nondiscriminatory tax on a trustee fulfills this requirement. . . . The tax does not place a financial burden upon the United States; nor will it — unless it is discriminatory and therefore unconstitutional — render the trustee’s task more difficult or cumbersome”); Note, State Taxation of Bankruptcy Liquidations: Federalism Misconceived, 67 Yale L. J. 335, 340 (1957) (footnotes omitted) (“Case law suggests that a sales or use tax should be upheld even in the absence of an applicable federal waiver. The immunity of one sovereign from taxation by another originated in the belief that the taxing power is necessarily destructive. This rationale has been repudiated, and Graves [v. New York ex rel. O’Keefe, 306 U. S. 466 (1939),] indicates that only taxes which can be so manipulated should be invalidated. Absent discriminatory application against sellers and buyers at liquidation sales, a sales or use tax should not seriously impede the federal bankruptcy process”).

       Title 28 U. S. C. §960 provides:
      “Any officers and agents conducting any business under authority of a United States court shall be subject to all Federal, State and local taxes applicable to such business to the same extent as if it were conducted by an individual or corporation.”
      The original provision, as passed by Congress in 1934, provided:
      “That any receiver, liquidator, referee, trustee, or other officers or agents appointed by any United States court who is authorized by said court to conduct any business, or who does conduct any business, shall, from and after the enactment of this Act, be subject to all State and local taxes applicable to such business the same as if such business were conducted by an individual or corporation: Provided, however, That nothing in this Act contained shall be construed to prohibit or prejudice the collection of any such taxes which accrued prior to the approval of this Act, in the event that the United States court having final jurisdiction of the subject matter under existing law should adjudge and decide that the imposition of such taxes was a valid exercise of the taxing power by the State or States, or by the civil subdivisions of the State or States imposing the same.” Act of June 18, 1934, ch. 585, 48 Stat. 993.
      The changes in language were made in 1948 as part of the general revision of the Judicial Code and impart no significant change in meaning. See Finley v. United States, ante, at 554.

       See also 78 Cong. Rec. 6656 (1934) (statement of Rep. MeKeown) (“A great many receivers in oil cases have been held by the court not liable to pay taxes. They do not pay the gasoline taxes to the State. There are thousands of dollars being lost to the State, because these receivers in gasoline and oil cases are not liable to pay those taxes. In the receivers for bank eases they do not have to pay the taxes to the State”). Ironically, the District Court decision in Howe v. Atlantic, Pacific & Gulf Oil Co., 4 F. Supp. 162 (WD Mo. 1933), that precipitated passage of the Act was reversed on state-law grounds even before the Act was signed into law. See Kansas City v. Johnson, 70 F. 2d 360 (CA8), cert. denied, 293 U. S. 617 (1934).

       “If the terms of the Louisiana statute had specifically provided for the levy of a tax against the trustee or receiver, there could be no doubt that the trustee would be liable for the franchise tax. There were controversies between state taxing authorities and the various liquidating agencies appointed by the Federal courts as to the liability for such taxes. Congress has, in the interest of justice or good will, by this Act directed the trustee to pay rather than litigate these tax claims. By the sweeping terms of this statute all doubts have been resolved in favor of the state taxes.” Thompson v. State of Louisiana, 98 F. 2d 108, 111 (CA8 1938). See also 3A Collier on Bankruptcy §62.14, p. 1526 (14th ed. 1975) (“The true meaning of the Act of June 18, 1934, would seem to be a declaration of policy: if States decide not to exempt from tax a business conducted by the officer of a federal bankruptcy court, such tax should be paid and bankruptcy, though governed by federal law, should not be raised as a defense, allowing bankrupt businesses to compete at an advantage with non-bankrupt businesses”); Pepper, Application of State Franchise Taxes to Trustees in Bankruptcy, 14 Taxes 259 (1936) (“All that Congress said in its enactment is that if a state imposes a tax upon a trustee, he cannot claim exemption by reason of the fact that he is a trustee”). '


source: Caselaw Access Project

author: Justice Stevens

license: Public Domain

text:
    GOMEZ v. UNITED STATES
    No. 88-5014.
    Argued April 24, 1989
    Decided June 12, 1989

      Stevens, J., delivered the opinion for a unanimous Court.

      Joel B. Rudin argued the cause for petitioners in both cases. With him on the briefs was Jerald Levine.

      Michael K. Kellogg argued the cause for the United States. On the brief were Acting Solicitor General Bryson, Assistant Attorney General Dennis, and Richard J. Lazarus.

      Together with No. 88-5158, Chavez-Tesina v. United States, also on certiorari to the same court.

         Burton H. Shostak filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.

   Justice Stevens

delivered the opinion of the Court.

Since its enactment in 1968, the Federal Magistrates Act has permitted district courts to assign magistrates certain described powers and duties, as well as “such additional duties as are not inconsistent with the Constitution and laws of the United States.” The principal question presented is whether presiding at the selection of a jury in a felony trial without the defendant’s consent is among those “additional duties.”

I

Petitioners Jose Gomez and Diego Chavez-Tesina were among 11 persons named as defendants in a 21-count indictment alleging commission of multiple felonies, including conspiracy and racketeering, involving distribution of cocaine. Having elected to stand trial, petitioners and three codefendants appeared before the Federal Magistrate to whom the District Judge had delegated the task of selecting a jury. Defense counsel made timely objections to this assignment. Following a telephone conversation with the District Judge, the Magistrate noted their objections and commenced voir dire. App. 13-16. As is the practice in the Eastern District of New York, the Magistrate, rather than the attorneys, posed questions to the venirepersons. The Magistrate also introduced the prospective jurors to the offenses charged; instructed them on numerous points of law, including the presumption of innocence and the different burdens of persuasion in civil and criminal trials; and admonished chosen jurors not to discuss the case with anyone. See generally Tr. of Jury Selection. When defense counsel appeared before the District Judge eight days later, they renewed their objections to the Magistrate’s role in jury selection. The District Judge overruled the objections but said he would review any of the Magistrate’s rulings de novo. App. 19. Defendants registered no specific challenge to any juror, and trial proceeded; 10 days later, the jury returned guilty verdicts against all five defendants. Gomez received two concurrent 10-year sentences, to be followed by a special 10-year parole term; Chavez-Tesina was ordered to serve 20 years on one count, with three lesser sentences to run concurrently, and lifetime special parole.

On appeal, defendants made no special claim of prejudice. They contended, as petitioners do before this Court, that the Magistrate had no power to conduct the voir dire examination and jury selection. A divided panel of the Court of Appeals rejected this argument. United States v. Garcia, 848 F. 2d 1324 (CA2 1988). The court held that Congress intended the additional duties clause to be construed broadly enough to include jury selection by magistrates. Id., at 1329. Such a designation, the majority added, does not violate Article III or the Due Process Clause of the Federal Constitution. Id., at 1330-1333. The dissenting judge expressed doubts concerning both the majority’s statutory interpretation and its constitutional analysis, and concluded that the court should exercise its supervisory powers to forbid delegation of voir dire to magistrates “except, possibly, when the parties consent, and then only pursuant to rules controlling the district court’s review.”

The Second Circuit’s decision conflicts with the holding of the Fifth Circuit in United States v. Ford, 824 F. 2d 1430, 1438 (1987) (en banc), cert. denied, 484 U. S. 1034 (1988). The Government had urged the court to construe the additional duties clause of the Federal Magistrates Act to allow judges to delegate jury selection in felony trials even without the defendant’s consent. That construction would provoke “grave constitutional questions,” the en banc majority stated. 824 F. 2d, at 1430; see id., at 1435. After stressing the importance of jury selection and noting the specificity with which Congress defined magistrates’ duties regarding other judicial proceedings, the majority concluded:

“Additional duty is a residuum, granting the power to delegate any task not otherwise forbidden after we carve away that congery of duties that Congress never envisioned would be delegated. We are not persuaded that Congress intended to grant authority to judges to delegate to magistrates the authority to preside over felony trials and over activities integral to and intimately tied with trial.”

We granted certiorari to resolve this important conflict. 488 U. S. 838 (1989).

II

The Federal Magistrates Act provides that a “magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” 28 U. S. C. § 636(b)(3). Read literally and without reference to the context in which they appear, these words might encompass any assignment that is not explicitly prohibited by statute or by the Constitution. The Act itself specifies some proscriptions: magistrates “may hold no other civil or military office or employment under the United States,” § 631(c), nor “engage in the practice of law [or] any other business, occupation, or employment inconsistent with the expeditious, proper, and impartial performance of their duties as judicial officers,” § 632(a). The only legal constraint on many other assignments not expressly barred — whether supervising repair of the courthouse electrical system or presiding at felony trials — must be found, according to the literal reading, in the Constitution. The panel majority below and the dissenters in Ford embraced this construction, despite abiding concerns regarding the constitutionality of delegating felony trial duties to magistrates.

It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question. See, e. g., Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986); United States v. Rumely, 345 U. S. 41, 45 (1953); Crowell v. Benson, 285 U. S. 22, 62 (1932). In these cases, such an alternative interpretation of the additional duties clause readily may be deduced from the context of the overall statutory scheme. Cf. Massachusetts v. Morash, ante, at 115 (“‘[I]n expounding a statute, we [are] not. . . guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy’”) (quoting Pilot Life Insurance Co. v. Dedeaux, 481 U. S. 41, 51 (1987); Richards v. United States, 369 U. S. 1, 11 (1962)). When a statute creates an office to which it assigns specific duties, those duties outline the attributes of the office. Any additional duties performed pursuant to a general authorization in the statute reasonably should bear some relation to the specified duties. Thus in United States v. Raddatz, 447 U. S. 667, 674-676 (1980); Mathews v. Weber, 423 U. S. 261 (1976); and Wingo v. Wedding, 418 U. S. 461 (1974), we interpreted the Federal Magistrates Act in light of its structure and purpose.

In Mathews, we considered whether preliminary review, argument, and preparation of recommended decisions in Social Security benefits cases were among the “additional duties” that a magistrate could perform. The Government opposed such referrals, arguing that Congress intended a magistrate to be a “‘supernotary/” assuming only the district judge’s “irksome, ministerial tasks,” while the benefits claimant likened the magistrate to a “ ‘para-judge’ ” with “a wide range of substantive judicial duties and advisory functions.” 423 U. S., at 268. Declining to choose either extreme or to read the “additional duties” language literally, we examined the Act’s structure and determined that limited, advisory review, subject to the district judge’s ongoing supervision and final decision, fell among the “range of duties” that Congress intended magistrates to perform. Id., at 270. In accordance with our reasoning in Mathews, our task is to consider the office of magistrate as it pertains to seating a jury in a felony case.

Ill

Before 1968, minor federal legal disputes were settled by United States commissioners, who collected fees for their services and often were not lawyers. Limitations on their jurisdiction resulted in the downgrading or dismissal of criminal offenses that otherwise would have to be tried by district judges. H. R. Rep. No. 1629, 90th Cong., 2d Sess., p. 14 (1968). The new office of magistrate, in contrast, was to be filled in most instances by attorneys. 82 Stat. 1108, 28 U. S. C. § 631(b) (1964 ed., Supp. IV). Paid by salary, magistrates were to be appointed by district judges to definite terms from which they could be removed only for cause. 82 Stat. 1109, 28 U. S. C. §§ 631(e), (h).

With enhanced status came greater responsibility. The Act not only conferred upon magistrates all the powers that commissioners had enjoyed, § 636(a), but also permitted district courts to establish rules by which magistrates could be assigned

“such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to—
“(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;
“(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and
“(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.” § 636(b).

Commissioners had tried only “petty offenses.” Magistrates were empowered to try “minor offenses,” but only upon special designation by the district court and only if the defendant, in writing, specifically waived his or her rights to trial before a judge and perhaps by a jury. 82 Stat. 1116, 18 U. S. C. §3401(b) (1964 ed., Supp. IV). A convicted defendant could appeal to the district court, § 3402, and Congress contemplated that district courts would retain “the greatest possible scrutiny and control of a magistrate’s trial jurisdiction,” H. R. Rep. No. 1629, at 21. Exempted from that jurisdiction were a number of minor offenses — such as bribery and public corruption, deprivation of rights under color of law, and jury tampering, 82 Stat. 1116, 18 U. S. C. § 3401(f) (1964 ed., Supp. IV) — that required the exercise of delicate judgment and “as a matter of sound congressional policy, ought to be tried in the U. S. district courts.” H. R. Rep. No. 1629, at 22.

In 1976, Congress amended the Act “to clarify and further define the additional duties which may be assigned to a United States Magistrate,” H. R. Rep. No. 94-1609, p. 2 (1976). Upon consent of the parties, a magistrate could be designated a special master in any civil case. 90 Stat. 2729, 28 U. S. C. § 636(b)(2) (1976 ed.). A magistrate also could be assigned to “hear and determine any pretrial matter,” subject to reconsideration by the district court on a showing that “the magistrate’s order is clearly erroneous or contrary to law.” § 636(b)(1)(A). Excepted were eight categories of “dispositive” pretrial motions; with regard to these a magistrate might conduct evidentiary and other hearings and recommend dispositions. § 636(b)(1)(B). If a party objected to the magistrate’s recommendation, the judge was to “make a de novo determination” of the matter. § 636(b)(1)(C). The 1968 Act had listed such functions among a magistrate’s additional duties; the 1976 amendments, in contrast, first described specific duties and then stated in a separate subsection that a “magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” § 636(b)(3). A Committee Report explained:

“Under this subsection, the district courts would remain free to experiment in the assignment of other duties to magistrates which may not necessarily be included in the broad category of ‘pretrial matters.’ This subsection would permit, for example, a magistrate to review default judgments, order the exoneration or forfeiture of bonds in criminal cases, and accept returns of jury verdicts where the trial judge is unavailable. This subsection would also enable the court to delegate some of the more administrative functions to a magistrate, such as the appointment of attorneys in criminal cases and assistance in the preparation of plans to achieve prompt disposition of cases in the court.
“If district judges are willing to experiment with the assignment to magistrates of other functions in aid of the business of the courts, there will be increased time available to judges for the careful and unhurried performance of their vital and traditional adjudicatory duties.” H. R. Rep. No. 94-1609, at 12.

By 1979, congressional concerns regarding magistrates’ abilities had decreased; a legislative Committee reported that “the magistrate system now plays an integral and important role in the Federal judicial system.” H. R. Rep. No. 96-287, p. 5 (1979). Accordingly, in the Federal Magistrates Act of 1979, Pub. L. 96-82, 93 Stat. 643-647, Congress enlarged the magistrate’s jurisdiction over civil and criminal trials, codifying some of the experiments conducted under the Act’s additional duties clause. See H. R. Rep. No. 96-287, at 2, 17. Thus since 1979 magistrates have been authorized to preside at, and enter final judgment in, civil trials, including those tried before a jury. 93 Stat. 643-644, 28 U. S. C. § 636(c). For the first time magistrates were permitted to conduct jury, as well as bench, trials on any misdemeanor charge. 93 Stat. 646, 18 U. S. C. § 3401(b). As before, however, a magistrate’s trial jurisdiction can be exercised only upon special designation by the district court, 93 Stat. 643, 28 U. S. C. § 636(c)(1); 93 Stat. 645, 18 U. S. C. § 3401(a), and it remains subject to judicial review.

A critical limitation on this expanded jurisdiction is consent. As amended in 1979, the Act states that “neither the district judge nor the magistrate shall attempt to persuade or induce any party to consent to reference of any civil matter to a magistrate.” 93 Stat. 643, 28 U. S. C. § 636(c)(2). In criminal cases, the Government may petition for trial before a district judge. “Defendants charged -with misdemeanors can refuse to consent to a magistrate and thus effect the same removal,” S. Rep. No. 96-74, p. 7 (1979), for the magistrate’s criminal trial jurisdiction depends on the defendant’s specific, written consent.

IV

Through gradual congressional enlargement of magistrates’ jurisdiction, the Federal Magistrates Act now expressly authorizes magistrates to preside at jury trials of all civil disputes and criminal misdemeanors, subject to special assignment, consent of the parties, and judicial review. The Act further details magistrates’ functions regarding pretrial and post-trial matters, specifying two levels of review depending on the scope and significance of the magistrate’s decision. The district court retains the power to assign to magistrates unspecified “additional duties,” subject only to conditions or review that the court may choose to impose. By a literal reading this additional duties clause would permit magistrates to conduct felony trials. But the carefully defined grant of authority to conduct trials of civil matters and of minor criminal cases should be construed as an implicit withholding of the authority to preside at a felony trial. The legislative history, with its repeated statements that magistrates should handle subsidiary matters to enable district judges to concentrate on trying cases, and its assurances that magistrates’ adjudicatory jurisdiction had been circumscribed in the interests of policy as well as constitutional constraints, confirms this inference. Similar considerations lead us to conclude that Congress also did not contemplate inclusion of jury selection in felony trials among a magistrate’s additional duties.

Even though it is true that a criminal trial does not commence for purposes of the Double Jeopardy Clause until the jury is empaneled and sworn, Serfass v. United States, 420 U. S. 377, 388 (1975), other constitutional rights attach before that point, see, e. g., Brewer v. Williams, 430 U. S. 387, 398 (1977) (assistance of counsel). Thus in affirming voir dire as a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present, the Court wrote: “ ‘[W]here the indictment is for a felony, the trial commences at least from the time when the work of empanelling the jury begins.’” Lewis v. United States, 146 U. S. 370, 374 (1892) (quoting Hopt v. Utah, 110 U. S. 574, 578 (1884)). See Swain v. Alabama, 380 U. S. 202, 219 (1965) (voir dire “a necessary part of trial by jury”); see also Ricketts v. Adamson, 483 U. S. 1, 3 (1987); United States v. Powell, 469 U. S. 57, 66 (1984). Jury selection is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice, Rosales-Lopez v. United States, 451 U. S. 182, 188 (1981); Ham v. South Carolina, 409 U. S. 524 (1973); Dennis v. United States, 339 U. S. 162 (1950), or predisposition about the defendant’s culpability, Irvin v. Dowd, 366 U. S. 717 (1961). Indications that Congress likewise considers jury selection part of a felony trial may be gleaned, inter alia, from its passage in 1975 of the Speedy Trial Act, 18 U. S. C. § 3161 et seq. (1982 ed. and Supp. V), and its placement of rules pertaining to criminal petit juries in a chapter entitled “Trial.” See Fed. Rules Crim. Proc. 23, 24; cf. id., Rule 43(a) (requiring defendant’s presence “at every stage of the trial including the impaneling of the jury”).

Even assuming that Congress did not consider voir dire to be part of trial, it is unlikely that it intended to allow a magistrate to conduct jury selection without procedural guidance or judicial review. Significantly, when Congress clarified the magistrate’s duties in 1976, it did not identify the selection of a jury as either a “dispositive” matter covered by § 636(b)(1)(B) or a “nondispositive” pretrial matter governed by § 636(b)(1)(A). To the limited extent that it fits into either category, we believe jury selection is more akin to those precisely defined, “dispositive” matters for which sub-paragraph (B) meticulously sets forth a de novo review procedure. It is incongruous to assume that Congress implicitly required such review for jury selection yet failed even to mention that matter in the statute. It is equally incongruous to assume, in the alternative, that Congress intended not to require any review — not even the less stringent clearly-erroneous standard applicable to other pretrial matters — of a magistrate’s selection of a jury. Yet one of those assumptions would be a necessary component of a conclusion that Congress intended jury selection to be one of a magistrate’s additional duties.

In any event, we harbor serious doubts that a district judge could review this function meaningfully. Far from an administrative empanelment process, voir dire represents jurors’ first introduction to the substantive factual and legal issues in a case. To detect prejudices, the examiner — often, in the federal system, the court — must elicit from prospective jurors candid answers about intimate details of their lives. The court further must scrutinize not only spoken words but also gestures and attitudes of all participants to ensure the jury’s impartiality. See, e. g., Wainwright v. Witt, 469 U. S. 412, 428, n. 9 (1985) (quoting Reynolds v. United States, 98 U. S. 145, 156-157 (1879)). But only words can be preserved for review; no transcript can recapture the atmosphere of the voir dire, which may persist throughout the trial. Cf. Waller v. Georgia, 467 U. S. 39, 49, n. 9 (1984) (“While the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance, the Framers plainly thought them nonetheless real”). The absence of a specific reference to jury selection in the statute, or indeed, in the legislative history, persuades us that Congress did not intend the additional duties clause to embrace this function.

V

The Government concedes, as it must, that errors occurring during jury selection may be grounds for reversal of a conviction. Brief for United States 44, n. 41 (citing Batson v. Kentucky, 476 U. S. 79, 85 (1986); Witherspoon v. Illinois, 391 U. S. 510, 522 (1968)). Yet it argues that any error in these cases was harmless because petitioners allege no specific prejudice as a result of the Magistrate’s conducting the voir dire examination. Brief for United States’42-45. We find no merit to this argument. Among those basic fair trial rights that “ ‘can never be treated as harmless’ ” is a defendant’s “right to an impartial adjudicator, be it judge or jury.” Gray v. Mississippi, 481 U. S. 648, 668 (1987) (quoting Chapman v. California, 386 U. S. 18, 23 (1967)). Equally basic is a defendant’s right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside. Thus harmless-error analysis does not apply in a felony case in which, despite the defendant’s objection and without any meaningful review by a district judge, an officer exceeds his jurisdiction by selecting a jury.

The judgment of the Court of Appeals is

Reversed.

       Pub. L. 90-578, 82 Stat. 1108, as amended, 28 U. S. C. §636(b)(3).

       Both petitioners were charged with conspiracy to distribute, and actual distribution of, cocaine, in violation of 21 U. S. C. §§841, 846 (1982 ed. and Supp. V). In addition, petitioner Chavez-Tesina was charged with violating the Racketeer Influenced and Corrupt Organizations Act, 18 U. S. C. § 1962(c), and the Travel Act, 18 U. S. C. § 1952 (1982 ed. and Supp. V). United States v. Garcia, 848 F. 2d 1324, 1327 (CA2 1988).

       Cited as authority for the assignment was a local rule that states: “Full-time magistrates shall have jurisdiction to discharge the duties set forth in 28 U. S. C. See 636.” Fed. Local Ct. Rule 1 (EDNY 1988); see Garcia, 848 F. 2d, at 1327.

         Id., at 1338 (Oakes, J., dissenting). Cf. Fed. Rule Crim. Proc. 24(a).

       848 F. 2d, at 1338 (Oakes, J.). Cf. United States v. Ford, 824 F. 2d 1430, 1440 (CA5 1987) (en bane) (Jolly, J., concurring in result) (“[I]t might be appropriate and wise for federal courts, in their supervisory capacity, to enact rules curtailing, or even precluding the use of magistrates at voir dire in certain situations”), cert. denied, 484 U. S. 1034 (1988).

       824 F. 2d, at 1438. Nonetheless, because the defendant failed to object and “the trial was fundamentally fair,” the court held that the Magistrate’s participation was harmless error and affirmed the conviction. Id., at 1439; accord, ibid. (Jolly, J., concurring in result). In dissent, four judges maintained that the delegation fell within the express scope of the statute and withstood constitutional scrutiny. Id., at 1440-1448 (Rubin, J.).

       The Eighth Circuit has followed the Fifth Circuit in Ford, while two Ninth Circuit opinions decide the issue much as the Second Circuit did below. Compare United States v. Trice, 864 F. 2d 1421 (CA8 1988), with United States v. Peacock, 761 F. 2d 1313 (CA9), cert. denied, 474 U. S. 847 (1986); United States v. Bezold, 760 F. 2d 999 (CA9 1985), cert. denied, 474 U. S. 1063 (1986). See also United States v. Rodriguez-Suarez, 856 F. 2d 135 (CA11 1988) (because no assertion of prejudice, declines to reach merits of claim), cert. denied, 488 U. S. 1045 (1989). In other opinions Courts of Appeals have rejected challenges to a magistrate’s presiding over jury selection on procedural grounds. United States v. Rivera-Sola, 713 F. 2d 866 (CA1 1983) (defendant failed to object, no plain error); United States v. DeFiore, 720 F. 2d 757 (CA2 1983) (failure to object), cert. denied sub nom. Coppola v. United States, 466 U. S. 906 (1984).

        Garcia, 848 F. 2d, at 1329 (quoting In re Establishment Inspection of Gilbert & Bennett Manufacturing Co., 589 F. 2d 1335, 1340-1341 (CA7) (in sustaining inspection warrant issued by Magistrate, states that the “ ‘only limitations on section 636(b)(3) are that the duties be consistent with the Constitution and federal laws and that they not be specifically excluded by section 636(b)(1)’”), cert. denied sub nom. Chromalloy American Corp., Federal Malleable Div. v. Marshall, 444 U. S. 884 (1979)); Ford, 824 F. 2d, at 1441 (Rubin, J.).

       See, e. g., Hearings on S. 3475 et al. before the Subcommittee on Improvements in Judicial Machinery of the Senate Judiciary Committee, 89th Cong., 2d Sess., and 90th Cong., 1st Sess., p. 109 (1966-1967) (statement of Assistant Attorney General Vinson) (magistrates’ jurisdiction to try minor criminal offenses unconstitutional even with defendant’s waiver of rights); H. R. Rep. No. 1629, 90th Cong., 2d Sess., p. 21 (1968) (disagreeing with Vinson); 114 Cong. Rec. 27338-27343 (1968). See also Ford, 824 F. 2d, at 1437; H. R. Rep. No. 96-287, pp. 32-33 (1979) (dissenting views of Rep. Sensenbrenner).

       The Government had argued:
      “In the Magistrates Act, Congress gave magistrates only a limited role in the operation of the federal judicial system. District courts were not authorized to delegate to the magistrates all judicial functions that they deemed appropriate. Rather, the role of the magistrates was to assist, and lighten the workload of, district judges by performing relatively minor functions. The statutory phrase authorizing the district courts to assign to magistrates ‘duties . . . not inconsistent with the Constitution and laws of the United States’ must be read narrowly to reflect the limitations imposed upon the magistrates.” Brief for Petitioner in Mathews v. Weber, O. T. 1975, No. 74-850, p. 8.

       “Petty offenses” included “[a]ny misdemeanor, the penalty for which . . . does not exceed imprisonment for a period of six months or a fine of not more than $500, or both,” 18 U. S. C. § 1(3) (1964 ed.), repealed by Pub. L. 98-473, § 218(a)(1), 98 Stat. 2027.

       «<[]y[]inor offenses’ means misdemeanors punishable under the laws of the United States, the penalty for which does not exceed imprisonment for a period of one year, or a fine of not more than $1,000, or both,” 82 Stat. 1116, 18 U. S. C. § 3401(f) (1964 ed., Supp. IV).

       “The district judges may, for instance, exercise a veto power over the magistrate’s jurisdiction in particular cases, require reports on eases pending before the magistrate, establish uniform procedures to be followed by all magistrates exercising minor offense trial jurisdiction, and generally supervise the magistrate in the exercise of his trial jurisdiction.” H. R. Rep. No. 1629, at 21.

       In part, Congress intended to overturn judicial opinions limiting the scope of the Act, including Wingo v. Wedding, 418 U. S. 461 (1974) (magistrates not authorized to conduct evidentiary hearings in federal habeas corpus actions). H. R. Rep. No. 94-1609, p. 5 (1976); S. Rep. No. 94-625, pp. 3-4 (1976). Our holding in Mathews v. Weber, 423 U. S. 261 (1976) (Act authorizes magistrates to review and recommend disposition on Social Security benefits appeals), meanwhile, garnered approval. H. R. Rep. No. 94-1609, at 6.

       The relevant part of the 1976 Act, which has not been amended, reads as follows:
      “An Act
      “To improve judicial machinery by further defining the jurisdiction of United States magistrates, and for other purposes.

        “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 636(b) of title 28, United States Code, is amended to read as follows:
      “(b)(1) Notwithstanding any provision of law to the contrary—
      “(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.
      “(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.
      “(C) 'the magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.
      “Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.
      “(2) A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. 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 United States district courts.
      “(3) A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” 90 Stat. 2729, 28 U. S. C. §636.

       A table in a Committee Report listed the following as criminal pretrial matters handled by magistrates: arrest warrants, search warrants, bail hearings, preliminary examinations, removal hearings, postindictment arraignments, pretrial conferences, and pretrial motions. H. R. Rep. No. 94-1609, at 7; see id., at 9.

       Accord, S. Rep. No. 96-74, pp. 3, 6 (1979). But see H. R. Rep. No. 96-287, at 31-33 (dissenting views of Rep. Holtzman and Rep. Sensenbrenner).

       “A misdemeanor is any offense for which the maximum term of imprisonment that may be imposed does not exceed one year. An unlimited fine may also be imposed.” Id,., at 17. Accord, 18 U. S. C. §3559(a) (1982 ed., Supp. V).

       Losing civil litigants are entitled to appeal to the district court or directly to the court of appeals and to seek discretionary review before this Court. 93 Stat. 643-644, 28 U. S. C. §§ 636(c)(3)-(6). Convicted defendants may take an appeal as of right to the district court. 18 U. S. C. § 3402.

       Whereas the 1968 Act had excluded certain minor offenses from the magistrate’s jurisdiction, the 1979 amendments relaxed this requirement, providing:
      “The district court may order that proceedings in any misdemeanor case be conducted before a district judge rather than a United States magistrate upon the court’s own motion or, for good cause shown, upon petition by the attorney for the Government. Such petition should note the novelty, importance, or complexity of the case, or other pertinent factors, and be filed in accordance with regulations promulgated by the Attorney General.” 93 Stat. 646, 18 U. S. C. § 3401(f).
      United States Department of Justice regulations require that in eases involving many of the offenses excluded in the 1968 Act, the “attorney for the government shall consult with the Assistant Attorney General having supervisory authority over the subject matter in determining whether to petition for trial before a district judge.” 28 CFR § 52.02(b)(2) (1988).

       As amended, the statute states:
      “Any person charged with a misdemeanor may elect, however, to be tried before a judge of the district court for the district in which the offense was committed. The magistrate shall carefully explain to the defendant that he has a right to trial, judgment, and sentencing by a judge of the district court and that he may have a right to trial by jury before a district judge or magistrate. The magistrate shall not proceed to try the case unless the defendant, after such explanation, files a written consent to be tried before the magistrate that specifically waives trial, judgment, and sentencing by a judge of the district court.” 93 Stat. 646, 18 U. S. C. § 3401(b).
      Cf. H. R. Rep. No. 96-287, at 20 (“Because of the consent requirement, magistrates will be used only as the bench, bar, and litigants desire, only in cases where they are felt by all participants to be competent”).

       The Government concedes this point. See Tr. of Oral Arg. 30-31, 37; Brief for United States 14.

       See, e. g., n. 16, supra; H. R. Rep. No. 94-1609, at 7 (magistrate is to “assist the district judge in a variety of pretrial and preliminary matters thereby facilitating the ultimate and final exercise of the adjudicatory function at the trial of the case”); S. Rep. No. 92-1065, p. 3 (1972) (magistrates “render valuable assistance to the judges of the district courts, thereby freeing the time of those judges for the actual trial of cases”); H. R. Rep. No. 1629, at 12 (purpose of 1968 Act is “to cull from the ever-growing workload of the U. S. district courts matters that are more desirably performed by a lower tier of judicial officers”).

       See 114 Cong. Rec. 27342 (1968) (remarks of Rep. Poff) (“The intricate safeguards, the constitutional warnings, the statutory explanations, the written waivers and written elections required before the magistrate may exercise his trial jurisdiction in the individual ease — all show a statutory intent to preserve trial before the district judge as the principal— rather than an elective or alternative — mode of proceeding in minor offense cases”); id,., at 27338-27343; H. R. Rep. No. 1629, at 21-22.

       Because we decide that the Federal Magistrates Act does not allow the delegation of jury selection to magistrates, we need not consider the second question presented in these cases; i. e., whether such a delegation would be constitutional. Cf. Mathews, 423 U. S., at 269, n. 5; Wingo, 418 U. S., at 467, n. 4.

       See United States v. Howell, 719 F. 2d 1258, 1262 (CA5 1983) (for Speedy Trial Act purposes, trial commences at voir dire), cert. denied, 467 U. S. 1228 (1984).

       Like motions to suppress evidence, petitions for writs of habeas corpus, and other dispositive matters entailing evidentiary hearings, jury selection requires the adjudicator to observe witnesses, make credibility determinations, and weigh contradictory evidence. See Wainwright v. Witt, 469 U. S. 412 (1985). Clearly it is more difficult to review the correctness of a magistrate’s decisions on these matters than on pretrial matters, such as discovery motions, decided solely by reference to documents.

       Having concluded, n. 27, supra, that jury selection is more like the dispositive matters governed by § 636(b)(1)(B), we agree with the Eighth Circuit that “[sjubparagraph (A) was plainly intended for less important matters than voir dire,” Trice, 864 F. 2d, at 1428, and deem meritless the Government’s contention — advanced for the first time in this litigation before this Court — that jury selection is among the pretrial matters that a magistrate may “hear and determine,” subject to review only for mistakes that are clearly erroneous or contrary to law. See Brief for United States 7-11, and n. 7; Tr. of Oral Arg. 37.

       See Note, 102 Harv. L. Rev. 533, 538-539 (1988). Thus magistrates’ participation in jury voir dire differs palpably from their preliminary review — which district judges easily may examine before making a final decision — of “closed administrative record[s]” in Social Security cases, a function clearly within the additional duties contemplated by Congress. See Mathews, 423 U. S., at 270-271.
      In United States v. Raddatz, 447 U. S. 667, 680 (1980), we noted that a judge, if troubled by the credibility determinations a magistrate made during a suppression hearing, could rehear the witnesses. Although a judge similarly could question jurors further, as a practical matter a second interrogation might place jurors on the defensive, engendering prejudices irrelevant to the facts adduced at trial. See Garcia, 848 F. 2d, at 1337 (Oakes, J., dissenting). Even assuming that a district judge could review the magistrate’s actions meaningfully by examining the transcript or reexamining jurors, the time consumed by such review would negate time initially saved by the delegation. See Ford, 824 F. 2d, at 1437.

       Although Committee Reports, for example, often include charts listing magistrates’ duties, none mentions jury selection. See H. R. Rep. No. 96-287, at 4-5; S. Rep. No. 96-74, at 3; H. R. Rep. 94-1609, at 7; S. Rep. 94-625, at 5. The legislative history’s lone reference to voir dire as a magistrate’s duty appears to occur in a letter from the Chief Judge of the District of Oregon, to which a Committee Report referred favorably. H. R. Rep. No. 94-1609, at 9. The letter suggests that a magistrate selected juries only with consent of the parties, perhaps only in civil trials. Furthermore, it displays little concern about the validity of such assignments:
      “How can we do all of this? We just do it. It’s not necessary that we find authority in black and white before we give something to the magistrate. . . . Sure we might get shot down once in a while by an appellate court. So what?” Hearing on S. 1283 before the Subcommittee on Improvements in Judicial Machinery of the Senate Judiciary Committee, 94th Cong., 1st Sess., pp. 39-40 (1975).