PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6068

MALCOLM MUHAMMAD,

Plaintiff - Appellant,

v.

L. J. FLEMING; C. MANIS; QUINN C. REYNOLDS; MARCUS ELAM; M. WILLIAMS; M. BROYLES; HENRY PONTON; N. GREGG; S. STALLARD; JIMMY MITCHELL; C/O PAULEY; C/O BARNES; C/O PHILLIPS; SGT. PORCHIE; HENSLEY, Hearing Officer; LT. LIGHT; B. J. RAVIZEE; J. COMBS,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Pamela Meade Sargent, Magistrate Judge. (7:17-cv-00481-PMS)

Argued: January 27, 2022 Decided: March 16, 2022

Before NIEMEYER, DIAZ and QUATTLEBAUM, Circuit Judges.

Vacated and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Niemeyer and Judge Diaz joined.

ARGUED: S. Blake Davis, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Rohiniyurie Tashima, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: John J. Korzen, Director, Caitlin T. Augerson, Third-Year Law Student, Katharine Batchelor, Third-Year Law Student, Meredith Behrens, Third-Year Law Student, Aaron Walck, Third-Year Law Student, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Mark R. Herring, Attorney General, K. Scott Miles, Deputy Attorney General, Laura Maughan, Assistant Attorney General, Michelle S. Kallen, Acting Solicitor General, Laura H. Cahill, Assistant Attorney General, Kendall T. Burchard, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

2 QUATTLEBAUM, Circuit Judge:

A district court may refer a case to a magistrate judge if all parties consent.

(c). Malcolm Muhammad at first consented to the referral of his case to a magistrate

judge in his suit against state prison officials for violating his constitutional rights. But

before the defendants consented, Muhammad sought to withdraw that consent. The district

court rejected Muhammad’s efforts, finding first that he needed good cause to withdraw

his consent and second that Muhammad failed to show good cause. On appeal, Muhammad

argues that good cause was not required, and that the district court should have allowed

him to withdraw his consent. We thus confront the question of whether a party, who

previously consented to such a referral, must show good cause to withdraw that consent

when the other parties have not consented to the referral. For the reasons below, we

conclude that good cause is not required. And we also agree with Muhammad that, on this

record, his request to withdraw his consent to the jurisdiction of a federal magistrate judge

should have been allowed. Thus, we vacate the district court’s order and remand for

proceedings consistent with this opinion.

I.

Section 636 prescribes the jurisdiction of federal magistrate judges. Subsection (b)

relates to pretrial matters. Under that provision, a district court may refer certain pretrial

3 matters to a magistrate judge. 1 See

(b)(1)(A) (providing “a judge may

designate a magistrate judge to hear and determine any pretrial matter pending before the

court,” except in specified circumstances, including “a motion . . . for summary

judgment”). These limited referrals do not require consent of the parties.

Subsection 636(c) addresses referring the entire case to the magistrate judge. Under

that provision, a district court may refer the entire case to a magistrate judge, but only if all

parties consent. 2 See

(c)(1) (empowering a magistrate judge to “conduct

any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in

the case” upon “consent of the parties”); see also Fed. R. Civ. P. 73(a) (providing that “a

magistrate judge may, if all parties consent, conduct a civil action or proceeding”). This

case involves the referral of the entire case to the magistrate judge under § 636(c).

Section 636(c)(2) and Federal Rule of Civil Procedure 73 combine to provide the

baseline procedure for obtaining consent to magistrate judge jurisdiction. Those procedures

focus on the clerk of court—not the judges—to ensure consent is truly voluntary. See

(c)(2) (explaining the purpose to protect “the voluntariness of the parties’

consent”); Fed. R. Civ P. 73(b)(1) advisory committee’s notes to the 1983 amendments.

1 “[A] judge may also designate a magistrate judge . . . to submit to a judge of the court proposed findings of fact and recommendations for the disposition.”

(b)(1)(B). The findings and recommendations are often combined into a memorandum, commonly called a Report & Recommendation (R&R) or Memorandum and Recommendation (M&R). 2 “The entitlement to an Article III adjudicator is ‘a personal right’ and thus ordinarily ‘subject to waiver.’” Wellness Intern. Network, Ltd. v. Sharif,

, 678 (2015). A party waives their right to adjudication by an Article III judge by consenting to the jurisdiction of a magistrate judge. 4 Both require the clerk of court to notify the parties of the magistrate judge’s availability to

exercise jurisdiction under § 636(c). The parties may then communicate their consent to

the clerk of court by “jointly or separately fil[ing] a statement consenting to the referral.”

Fed. R. Civ P. 73(b)(1). Only “if all parties have consented to the referral” may the clerk

inform a district court judge or magistrate judge of a party’s response. And both § 636(c)

and Rule 73 permit the district court to remind the parties of the magistrate judge’s

availability. 3

Even after a case is referred entirely to a magistrate judge, the district court retains

the ability to vacate the referral. Section 636(c)(4) provides that a district court may vacate

the transfer “for good cause shown on its own motion, or under extraordinary

circumstances shown by any party.” Id. § 636(c)(4); see also Fed. R. Civ. P. 73(b)(3). With

that background in mind, we turn to the procedural history of this case.

II.

Malcolm Muhammad, a Virginia state prisoner, sued prison officials pro se, alleging

violations of his constitutional rights. 4 The clerk of court then notified the parties, using

the Western District of Virginia’s standard form, of their right to consent to the jurisdiction

3 As for any remaining procedural rules, § 636(c)(2) contemplates that the district courts will provide additional procedures. So, too, do the Advisory Committee Notes to Rule 73: “flexibility at the local level is preserved in that local rules will determine how notice shall be communicated to the parties, and local rules will specify the time period within which an election must be made.” 4 He also asserted various other claims that are not relevant to our disposition. 5 of a magistrate judge. This notice provided that to consent to the jurisdiction of a magistrate

judge, a party must sign the form and return it to the clerk’s office “within 15 days from

the date of this Notice.” J.A. 33. The notice also provided that the party could withhold

consent, “without adverse substantive consequences.” J.A. 33. Five days after receiving

the notice, Muhammad signed and returned the form to the clerk’s office. The defendants

did not respond to that notice.

About five months later, the clerk of court sent the parties a second notice for

consent to the jurisdiction of a magistrate judge. Muhammad again signed and returned the

form, and, again, none of the defendants did so.

Soon after the expiration of the 15-day deadline in the second notice, the district

court assigned administration of pretrial matters to Magistrate Judge Pamela Meade

Sargent pursuant to

(b). Before that assignment, Magistrate Judge Robert

S. Ballou had been handling pretrial referrals.

The next day, the clerk sent out a third notice to the parties for consent to the

jurisdiction of a magistrate judge. This time, however, Muhammad did not return the

notice. Instead, he filed a “Motion to Deny His Right to Consent to Jurisdiction of United

States Magistrate Judge,” indicating he did not want to be under the jurisdiction of a

magistrate judge. J.A. 43. While difficult to decipher, Muhammad’s filing appears to

express dissatisfaction with Magistrate Judge Sargent related to another action he was

6 pursuing. 5 As with the two previous notices, the defendants did not respond to the third

notice.

Around three months later, with no ruling on Muhammad’s “Motion,” the

defendants moved for summary judgment. Two days after that, the clerk of court sent the

parties a fourth notice for consent to the jurisdiction of a magistrate judge. In response,

Muhammad filed another document reiterating that he no longer wanted to have the case

under the jurisdiction of a magistrate judge. He then filed his opposition to the defendants’

motion for summary judgment. The district court referred the motion for summary

judgment to Magistrate Judge Sargent for her to make proposed findings of fact and

recommendations for the review and disposition by the district court.

While the defendants’ motion for summary judgment was pending, the district court

denied Muhammad’s motion to withdraw his consent to the jurisdiction of a magistrate

judge. The district court cited a decision from the Fifth Circuit, Carter v. Sea Land Servs.,

Inc.,

(5th Cir. 1987), for the rule that “there is no absolute right to

withdraw a validly given consent to trial before a magistrate,” and that withdrawal may be

granted only for good cause. Applying that rule, the district court found that Muhammad

Muhammad brought the other action, captioned 7:16-cv-500, in the Western 5

District of Virginia as well. In that action, he tried his case before a jury with Magistrate Judge Sargent presiding. At trial, Magistrate Judge Sargent granted a defendant judgment as a matter of law on Muhammad’s due process claim but allowed Muhammad’s retaliation claims to proceed to the jury. The jury returned a verdict for the defendants on Muhammad’s retaliation claim. Muhammad appealed that judgment to this Court, which we affirmed. Muhammad v. Taylor, No. 18-7255,

(4th Cir. Aug. 15, 2019) (Mem). The Supreme Court denied his petition for certiorari. Muhammad v. Taylor, No. 19-6292,

(2019) (Mem). 7 had not shown good cause since “[m]ere dissatisfaction with prior rulings alone is not

sufficient to show good cause.” J.A. 414. Separately, but during the same time frame,

Magistrate Judge Sargent issued an R&R, recommending that the district court grant the

defendants summary judgment on all of Muhammad’s claims. Muhammad timely objected

to the R&R.

Shortly after the district court denied Muhammad’s withdrawal and the magistrate

judge issued her R&R, the defendants submitted a completed form consenting to the

jurisdiction of a magistrate judge. The defendants used the fourth notice form, which, like

all the forms, required the parties to consent within 15 days. Despite that, almost nine

months had elapsed since they received the fourth notice.

Five days after the defendants provided the clerk’s office with their form consenting

to the jurisdiction of a magistrate judge, the district court transferred the case to Magistrate

Judge Sargent under

(c). Magistrate Judge Sargent then adopted her own

R&R and entered judgment dismissing Muhammad’s claims. Muhammad timely appealed

the district court’s order denying withdrawal of his consent to the jurisdiction of a

magistrate judge and the magistrate judge’s entry of judgment on his claims. We have

jurisdiction to review under

.

III.

On appeal, Muhammad contends the district court improperly transferred the case

to Magistrate Judge Sargent. He claims that while he consented to the referral in response

to the first two notices of the right to consent to the magistrate judge’s jurisdiction, the

8 defendants never did. He asserts that his responses to the third and fourth notices showed

that he did not agree to the referral. As a result, in his view, referral was not allowed under

§ 636(c). And Muhammad argues that, when the defendants finally consented, it was not

only after he filed two oppositions to the referral, but also after the expiration of the 15-

day deadline and after Magistrate Judge Sargent had issued an R&R. He contends referring

the case under these circumstances violated § 636(c) and encourages judge-shopping.

The defendants frame the issues differently. They claim Muhammad consented to

the jurisdiction of the magistrate judge and later sought to withdraw that consent. They

insist that to withdraw consent, a party must establish good cause. They also argue that the

only reason Muhammad gave in support of his request for a withdrawal of consent was his

dissatisfaction with Magistrate Judge Sargent, which amounts to judge-shopping. They

contend that the district court’s determination that Muhammad had not established good

cause was correct and certainly not an abuse of discretion.

While the parties frame the issues differently, this appeal boils down to whether a

party, who previously consented to a referral to a magistrate judge, must show good cause

to withdraw that consent when the other parties have not yet consented to the referral. If

the answer is yes, we review the district court’s determination that Muhammad failed to

9 show good cause for abuse of discretion. But if the answer is no, we must decide whether

Muhammad should have been allowed to withdraw his consent to magistrate jurisdiction.6

A.

To determine whether Muhammad needed to establish good cause to withdraw his

consent to the jurisdiction of the magistrate judge, 7 we begin with the text of § 636. The

statute does not address a party’s withdrawal of consent before a transfer. Thus, it certainly

does not impose a good cause standard for withdrawing consent. The only mention of good

cause in § 636 comes in subsection (c)(4). That subsection provides that a district court

may vacate the transfer “for good cause shown on its own motion, or under extraordinary

circumstances shown by any party.”

(c)(4); see also Fed. R. Civ. P.

73(b)(3). But § 636(c)(4) only applies once a case has been transferred to the magistrate

judge. It does not apply to one party’s consent to referral when the other parties have not

6 The parties’ dispute over good cause raises the question of the effect of the expiration of the 15-day consent deadline in the notices. While there is no deadline in the statute, “[a] district court has discretion to adopt local rules.” Hollingsworth v. Perry,

(2010). Local rules are binding on the parties and the court that promulgated them. Maritrans Operating Partners Ltd. P’ship v. M/V Balsa 37,

, 154–55 (4th Cir. 1995). The defendants never consented to the first and second notices, much less consented within the 15 days provided. Similarly, as to the third notice, it seems that neither party consented. And last, as to the fourth notice, Muhammad did not consent and, while the defendants ultimately did, it was almost nine months after the notice was issued—well past the 15-day deadline. Given the 15-day deadline in the notices, it seems questionable whether there was ever a proper referral to the magistrate judge. But we need not decide this issue. Even if Muhammad’s earlier consents remained operative, he was not required to show good cause when the defendants had not consented to the referral of the case to the magistrate judge. 7 We review this legal question—whether Muhammad was required to show good cause for the district court to grant his motion—de novo. Salem v. Holder,

(4th Cir. 2011). 10 also consented. That there is a good cause requirement to vacate a referral once the case

has been transferred and not before is significant. Congress knew how to impose a good

cause requirement in connection with its control over magistrate judge jurisdiction. Yet it

did not impose that requirement for a party’s withdrawal of his or her consent before the

other parties consented to magistrate judge jurisdiction. We decline to judicially create a

requirement Congress did not impose.

While there is limited authority on a party’s withdrawal of consent to the jurisdiction

of a magistrate judge, two of our sister circuits have addressed similar issues in different

cases. Each supports our conclusion that good cause is not required.

In Gilmore v. Lockard,

(9th Cir. 2019), a plaintiff consented to

jurisdiction under a magistrate judge, but the defendants initially did not. After the

magistrate judge issued a pretrial ruling adverse to the plaintiff, he moved to withdraw his

consent to § 636(c) jurisdiction. Id. at 860. The magistrate judge denied the plaintiff’s

motion to withdraw consent because the plaintiff’s “disagreement with his ruling . . . did

not amount to good cause.” Id. The Ninth Circuit disagreed that the “good cause” standard

applied. Id. at 861–62. It held that it was within the district court’s discretion whether to

grant the plaintiff’s motion to withdraw consent, but that the plaintiff should have been

allowed to withdraw his consent. Id. at 861–63. The Ninth Circuit noted that the plaintiff

had “filed a timely motion to withdraw consent[,] [t]here was no possible prejudice to

[d]efendants at the time [plaintiff] sought withdrawal, nor was it inconvenient to the district

court” since the case would then be handled by the district court judge it had been assigned

to originally. Id. at 863.

11 The second case is Carter v. Sea Land Services, Inc.,

(5th Cir. 1987).

While the defendants argue this case supports their position, it actually undermines it.

There, after all the parties had consented to trial before a magistrate judge and the district

court had transferred the case, a party moved to withdraw its consent.

at 1019–20. The

Fifth Circuit held a litigant needed good cause to withdraw consent because all the parties

had consented to the jurisdiction of a magistrate judge and the district court had referred

the case before any party sought to withdraw consent. In that situation, § 636(c)(4) required

that good cause be shown. But here Muhammad withdrew his consent before the

defendants consented and before the district court transferred the case, which makes this

case very different from Carter. In fact, Carter bolsters our decision because the central

concern in Carter was not allowing a party “a free shot at a favorable outcome or a veto of

an unfavorable outcome.” Id. at 1020. Were we to adopt the defendants’ position, that

Muhammad forfeited his right to Article III adjudication when he sent in the first signed

form, we would validate the defendants’ delay in consenting and allow them the “free

shot,” via the magistrate judge’s R&R, that the Carter court sought to prevent.

In sum, a party like Muhammad, who previously consented to the jurisdiction of the

magistrate judge, but who sought to withdraw such consent before any other party

consented, need not show good cause. The district court erred in requiring Muhammad to

show good cause to withdraw his consent.

B.

Without a good cause requirement, we see no reason Muhammad should not have

been allowed to withdraw his consent to the jurisdiction of the magistrate judge. Section

12 636(c) imposes no limitations on withdrawal before all parties consented. And Muhammad

filed his motion well before the defendants consented and well before the court ordered the

referral. While difficult to imagine, perhaps there might be extraordinary circumstances

when a party should not be allowed to withdraw its consent to magistrate jurisdiction before

the other parties exercise their right to consent. But none are presented here.

As a final matter, we note that Muhammad’s apparent rationale for withdrawing his

consent—to avoid Magistrate Judge Sargent—does not justify denying Muhammad’s

withdrawal. While phrases like “judge-shopping” sound sinister, Muhammad had every

right to withhold consent to the jurisdiction of a magistrate judge based on the risk of being

assigned to a judge with whom he had a negative experience. What’s more, the defendants

are not, as they suggest, on higher ground. They did not consent to the jurisdiction of the

magistrate judge the first three times the district court issued a notice of their right to such

a referral. Then, the fourth time the notice was issued, they failed to consent within the

prescribed time. In fact, the defendants waited almost nine months before consenting and

then only did so after the magistrate judge issued an R&R favorable to them. Pot, meet

kettle.

Thus, Muhammad should have been allowed here to withdraw his consent to

magistrate judge jurisdiction. The district court erred in denying Muhammad’s motion. 8

Muhammad also argues that the magistrate judge erred in reviewing and adopting 8

her own R&R. In light of our decision that Muhammad’s motion to withdraw consent should have been granted, we need not address this issue. 13 IV.

For the reasons provided above, the district court’s order denying Muhammad’s

motion is vacated. We also vacate the magistrate judge’s order entering final judgment

since Muhammad’s withdrawal of consent, which should have been allowed, deprived the

magistrate judge of jurisdiction. The case is remanded to the district court for proceedings

consistent with this opinion.

VACATED AND REMANDED

14