Roell v. Withrow
Dissenting Opinion
with whom Justice Stevens, Justice Scalia, and Justice Kennedy join, dissenting.
The provision that this Court must interpret reads: “Upon the consent of the parties, a . . . magistrate judge . . . may
I
A
There are two prongs to the majority’s holding: (1) parties can give their consent during the actual proceedings conducted by a magistrate judge, and (2) such consent need not be explicit, but rather may be inferred from the parties’ conduct. Neither of these conclusions is correct.
As already noted, a magistrate judge may carry out certain functions of a district court only “[u]pon the consent of the parties.” Congress’ use of the word “upon” suggests that the necessary consent must precede the magistrate judge’s exercise of his authority. “Upon” is defined as “immediately or very soon after.” The Random House Dictionary of the English Language 1570 (1966). Thus, under the plain language of the statute, consent is a precondition to the magistrate judge’s exercise of case-dispositive power; without it, a magistrate judge cannot preside over a trial or enter judgment. Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F. 2d 537, 540 (CA9 1984) (en banc) (Kennedy, J.).
Similarly, the conclusion that implied, rather than express, consent suffices is not borne out by either § 636(c)(1) itself or the statutory scheme as a whole. The majority is, of course, correct that the relevant clause of § 636(c)(1) speaks only of “consent,” while the clause addressing part-time magistrate judges requires that consent be communicated by a “specific written request.” Ante, at 587 (internal quotation marks omitted). But this premise does not command the conclusion the majority draws. Both clauses require express consent, with the latter mandating a specific form of express consent — a written request.
Federal Rule of Civil Procedure 73 fortifies this reading. The Rule mirrors the provisions of § 636(c)(2) for informing parties of their option to proceed before a magistrate judge and of their obligation to file a consent form if they chose to do so. Fed. Rule Civ. Proc. 73(b) (“When a magistrate judge has been designated to exercise civil trial jurisdiction, the clerk shall give written notice to the parties of their opportunity to consent,” and if the parties agree, “they shall execute and file a joint form of consent or separate forms of consent ...” (emphasis added)).
Read together, the foregoing provisions indicate that parties must expressly communicate their consent to the magistrate judge’s exercise of jurisdiction over their case and must
B
While I agree with the majority’s view that § 636(c)(1) was “meant to preserve a litigant’s right to insist on trial before an Article III district judge,” ante, at 588, and to prevent “coercive referrals,” ante, at 589, the majority’s construction of this provision does not follow the Court’s “settled policy to avoid an interpretation of a federal statute that engenders constitutional issues.” Gomez v. United States, 490 U. S. 858, 864 (1989).
“A critical limitation on [the] expanded jurisdiction [of magistrate judges] is consent.” Id., at 870. Reading § 636(c)(1) to require express consent not only is more consistent with the text of the statute, but also ensures that the parties knowingly and voluntarily waive their right to an Article III judge. A party’s express consent is a clear and unambiguous indication that the party had sufficient notice it was freely waiving its right. Accordingly, I would choose this interpretation over the majority’s view that implied consent suffices to give a magistrate judge dispositive authority over a case. Cf. Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U. S. 389, 393 (1937) (holding that the parties, by their request for directed verdicts, did not waive their right to trial by jury, and observing that “courts indulge every reasonable presumption against waiver”); Ohio Bell Telephone Co. v. Public Util. Comm’n of Ohio, 301 U. S. 292, 307 (1937) (holding that a telephone company did not waive its right to have the value of its property determined upon evidence presented in open proceedings by not opposing consolidation of two proceedings, and noting that “[w]e do not presume acquiescence in the loss of fundamental rights”).
Moreover, the majority’s test for determining whether a party has given adequate implied consent — “where . . . the litigant or counsel was made aware of the need for consent
Although the majority brushes aside the prudential implications of its reading, ante, at 591, n. 7 (“We doubt that this interpretation runs a serious risk of ‘spawning] a second litigation of significant dimension.’ Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 609 (2001)”), it is hardly a novel proposition that a bright-line rule would be easier to administer. And, it would certainly be so in adjudicating the validity of consent under this statute. If express consent is required, courts will not have to study the record of a proceeding on a case-by-case basis, searching for patterns in the parties’ behavior that would provide sufficient indicia of voluntariness to satisfy this newly minted, but vague, test for consent. A bright-line rule brings clarity and predictability, and, in light of the constitutional implications of this case, these values should not be discounted.
Given the uncertainties surrounding the determination of the validity of implied consent, it is not surprising that the majority does not even claim that the requirements of Article III have been satisfied in this case. Rather, all the majority can muster is that “the Article III right is substantially honored.” Ante, at 590 (emphasis added). However,
Even apart from the plain text of the statute and the canon of constitutional avoidance, concerns about fairness — to which the majority alludes above, see ante, at 588-590— weigh in favor of express consent. According to the majority, the respondent is a “possibly opportunistic litigant,” who “deserves no boon from the other side’s failure to cross the bright line,” ante, at 590. The record, however, provides no evidence that respondent, proceeding pro se below, manipulated the system. Moreover, “the other side” is the State of Texas, a repeat player, represented by its own counsel, and no doubt familiar with the rules of the local federal courts. Finally, it was not respondent who raised the issue of consent, but the Court of Appeals, which considered the question sua sponte.
II
Because the parties here did not expressly consent to the proceeding before the Magistrate Judge, I next consider whether the lack of such consent destroys jurisdiction of a court of appeals reviewing a magistrate judge’s judgment. I believe it does, and thus, a court of appeals may — and indeed must — raise it sua sponte.
A court of appeals exercises jurisdiction over a magistrate judge’s final order pursuant to § 636(c)(3), which provides:
“Upon entry of judgment in any case referred under paragraph (I) of this subsection, an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate judge in*598 the same manner as an appeal from any other judgment of a district court. The consent of the parties allows a magistrate judge designated to exercise civil jurisdiction under paragraph (1) of this subsection to direct the entry of a judgment of the district court in accordance with the Federal Rules of Civil Procedure.” (Emphasis added.)
Under § 636(c)(3), appellate jurisdiction over final judgments entered by a magistrate judge depends on whether the requirements of § 636(c)(1), including consent, are satisfied. Absence of consent means absence of a “judgment,” which, in turn, means absence of appellate jurisdiction. Thus, under § 636, the necessary precondition for a court of appeals’ jurisdiction over a magistrate judge’s order is the parties’ consent to proceed before the magistrate judge. Because valid consent is a jurisdictional prerequisite for appellate jurisdiction, and, hence, an integral part of the inquiry into the existence of such jurisdiction, § 636(c)(3) permits a court of appeals to examine the validity of the consent to the magistrate judge’s authority sua sponte.
The de facto officer doctrine is not to the contrary. That doctrine “prevents] litigants from abiding the outcome of a lawsuit and then overturning it if adverse upon a technicality of which they were previously aware.” Glidden Co. v. Zdanok, 370 U. S. 530, 535 (1962) (plurality opinion). Examples of such “technicalities” are defects in the judge’s appointment or designation. See, e. g., Ex parte Ward, 173 U. S. 452, 456 (1899) (judge improperly appointed during a Senate recess); Wright v. United States, 158 U. S. 232, 238 (1895) (deputy marshal whose oath of office had not been properly administered); McDowell v. United States, 159 U. S. 596, 601-602 (1895) (judge whose designation to sit in a different district may have been improper under the statute); Ball v. United States, 140 U. S. 118, 128-129 (1891) (judge sitting in place of a deceased judge where designation permitted only the substitution for a disabled judge). The doctrine is, how
* * *
I would vacate the judgment below and remand the case with instructions to dismiss the appeal for lack of subject-matter jurisdiction. I respectfully dissent.
Opinion of the Court
delivered the opinion of the Court.
The Federal Magistrate Act of 1979 (Federal Magistrate Act or Act) expanded the power of magistrate judges by authorizing them to conduct “any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case,” as long as they are “specially designated ... by the district court” and are acting “[u]pon the consent of the parties.” 28 U. S. C. § 636(c)(1). The question is whether consent can be inferred from a party’s conduct during litigation, and we hold that it can be.
I
Respondent Jon Michael Withrow is a Texas state prisoner who brought an action under Rev. Stat. § 1979, 42 U. S. C. §1983, against members of the prison’s medical staff, petitioners Joseph Roell, Petra Garibay, and James Reagan, alleging that they had deliberately disregarded his medical needs in violation of the Eighth Amendment. See Estelle v. Gamble, 429 U. S. 97 (1976). During a preliminary hearing before a Magistrate Judge to determine whether the suit could proceed in forma pauperis, see 28 U. S. C. § 1915, the Magistrate Judge told Withrow that he could choose to have
Without waiting for the petitioners’ decision, the District Judge referred the case to the Magistrate Judge for final disposition, but with the caveat that “all defendants [would] be given an opportunity to consent to the jurisdiction of the magistrate judge,” and that the referral order would be vacated if any of the defendants did not consent. App. to Pet. for Cert. 21a. The Clerk of Court sent the referral order to the petitioners along with a summons directing them to include “[i]n their answer or in a separate pleading... a statement that ‘All defendants consent to the jurisdiction of a United States Magistrate Judge’ or ‘All defendants do not consent to the jurisdiction of a United States Magistrate Judge.’ ” App. 13. The summons advised them that “[t]he court shall not be told which parties do not consent.” Ibid. Only Reagan, who was represented by private counsel, gave written consent to the referral; Roell and Garibay, who were represented by an assistant in the attorney general’s office, filed answers but said nothing about the referral. App. to Pet. for Cert. 17a.
The case nevertheless proceeded in front of the Magistrate Judge, all the way to a jury verdict and judgment for the petitioners. When Withrow appealed, the Court of Appeals sua sponte remanded the ease to the District Court to “determine whether the parties consented to proceed before the magistrate judge and, if so, whether the consents were oral or written.” Id., at 13a. It was only then that Roell and Garibay filed a formal letter of consent with the District
The District Court nonetheless referred the Court of Appeals’s enquiry to the same Magistrate Judge who had conducted the trial, who reported that “by their actions [Roell and Garibay] clearly implied their consent to the jurisdiction of a magistrate.” Id., at 19a. She was surely correct, for the record shows that Roell and Garibay voluntarily participated in the entire course of proceedings before the Magistrate Judge, and voiced no objection when, at several points, the Magistrate Judge made it clear that she believed they had consented.
The Court of Appeals affirmed the District Court, agreeing that “[w]hen, pursuant to § 636(c)(1), the magistrate judge
II
The Federal Magistrate Act provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court.” 28 U. S. C. § 636(c)(1). Unlike non-consensual referrals of pretrial but case-dispositive matters under § 636(b)(1), which leave the district court free to do as it sees fit with the magistrate judge’s recommendations, a § 636(c)(1) referral gives the magistrate judge full authority over dispositive motions, conduct of trial, and entry of final judgment, all without district court review. A judgment entered by “a magistrate judge designated to exercise civil jurisdiction under [§ 636(c)(1)]” is to be treated as a final judgment of the district court, appealable “in the same manner as an appeal from any other judgment of a district court.” § 636(c)(3).
Here, of course, § 636(c)(2) was honored in the breach, by a referral before Roell and Garibay gave their express consent, without any statement from them, written or oral, until after judgment. App. to Pet. for Cert. 19a. Nonetheless, Roell and Garibay “clearly implied their consent” by their decision to appear before the Magistrate Judge, without expressing any reservation, after being notified of their right to refuse and after being told that she intended to exercise case-dispositive authority. Ibid.
So far as it concerns full-time magistrate judges,
When, as here, a party has signaled consent to the magistrate judge’s authority through actions rather than words, the question is what outcome does better by the mix of congressional objectives. On the one hand, the virtue of strict insistence on the express consent requirement embodied in § 636(c)(2) is simply the value of any bright line: here, absolutely minimal risk of compromising the right to an Article
The bright line is not worth the downside. We think the better rule is to accept implied consent where, as here, the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge. Inferring consent in these circumstances thus checks the risk of gamesmanship by depriving parties of the luxury of waiting for the outcome before denying the magistrate judge’s authority. Judicial efficiency is served; the Article III right is substantially honored. See Schor, supra, at 849-850 (finding that the litigant “effectively] waive[d]” his right to an Article III court by deciding “to seek relief before the [Commodity Futures Trading Commission] rather than in the federal courts”); United States v. Raddatz, 447 U. S. 667, 676, n. 3 (1980) (eschewing a construction of the Act that would tend to “frus
HH HH h-H
Roell’s and Garibay’s general appearances before the Magistrate Judge, after they had been told of their right to be tried by a district judge, supply the consent necessary for the Magistrate Judge’s “civil jurisdiction” under § 636(c)(1).
It is so ordered.
On at least three different occasions, counsel for Roell and Garibay was present and stood silent when the Magistrate Judge stated that they had consented to her authority. First, in a status teleconference involving the addition of a new defendant, Danny Knutson, who later settled with Wi-throw and was dropped from the suit, the Magistrate Judge stated that “all of the other parties have consented to my jurisdiction.” App. 18. Petitioners later filed a motion for summary judgment, which the Magistrate Judge denied, noting in her order that “this case was referred to the undersigned to conduct all further proceedings, including entry of final judgment, in accordance with 28 U. S. C. § 636(c)(1).” App. to Pet. for Cert. 26a. And finally, during jury selection, the Magistrate Judge told the panel that both sides had consented to her jurisdiction to hear the case. Id., at 27a.
Prior to the 1996 amendments to the Act, see Federal Courts Improvement Act of 1996, Pub. L. 104-317, §207(1)(B), 110 Stat. 3850, parties could also elect to appeal to “a judge of the district court in the same manner as on an appeal from a judgment of the district court to a court of appeals.” 28 U. S. C. § 636(c)(4) (1994 ed.) (repealed 1996). If the latter course was pursued, the court of appeals could grant leave to appeal the district court’s judgment. § 636(c)(5) (same). In all events, whether the initial appeal was to the court of appeals under § 636(e)(3) or to the district court under § 636(c)(4), the parties retained the right to seek ultimate review from this Court. § 636(c)(5) (same).
See Black’s Law Dictionary 95 (7th ed. 1999) (“ ‘The term “appearance” . . . designate^] the overt act by which [a party] submits himself to the court’s jurisdiction.... An appearance may be expressly made by formal
The parties do not dispute that the Magistrate Judge who presided over the trial was a full-time Magistrate Judge.
The textual evidence cited by the dissent is far from conclusive. The dissent focuses on the fact that § 636(c)(1) allows a magistrate judge to exercise authority only “[u]pon” the parties’ consent, and it concludes that this temporal connotation forecloses accepting implied consent. But the
Furthermore, it is hardly true, contrary to the dissent’s claim, post, at 594 (opinion of Thomas, J.), that § 636(c)(2) and Rule 73(b) are pointless if implied consent is permitted under § 636(c)(1). Certainly, notification of the right to refuse the magistrate judge is a prerequisite to any inference of consent, so that aspect of §636(c)(2)’s protection is preserved. And litigants may undoubtedly insist that they be able to communicate their decision on the referral to the clerk, in order to guard against the risk of reprisals at the hands of either judge. The only question is whether a litigant who forgoes that procedural opportunity, but still voluntarily gives his consent through a general appearance before the magistrate judge, is still subject to the magistrate judge’s “civil jurisdiction,” and we think that the language of § 636(c)(1) indicates that he is.
Originally, the third sentence of § 636(c)(2) provided that once the decision of the parties was communicated to the clerk, “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. In the 1990 amendments to the Act, Congress amended § 636(e)(2) to provide that even after the parties’ decision is made, “either the district court judge or the magistrate may again advise the parties of the availability of the magistrate, but in so doing, shall also advise the parties that they are free to withhold consent without adverse substantive consequences.” Judicial Improvements Act of 1990, Pub. L. 101-650, §308, 104 Stat. 5112. The change reflected Congress’s diminishing concern that communication between the judge and the parties would lead to coercive referrals. See H. R. Rep. No. 101-734, p. 27 (1990).
We doubt that this interpretation runs a serious risk of “spawning] a second litigation of significant dimension.” Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 609 (2001) (internal quotation marks omitted). In the first place, implied consent will be the exception, not the rule, since, as we discuss above, district courts remain bound by the procedural requirements of § 636(c)(2) and Federal Rule of Civil Procedure 73(b). See supra, at 586, 587-588, n. 5. The dissent surmises, post, at 596, that our position raises “ambiguities” as to whether an inference of consent will be supported in a particular case, but we think this concern is greatly exaggerated: as long as parties are notified of the availability of a district judge as required by § 636(c)(2) and Rule 73(b), a litigant’s general appearance before the magistrate judge will usually indicate the necessary consent. In all events, whatever risk of “secondfary] litigation” may exist under an implied consent rule pales in comparison to the inefficiency and unfairness of requiring relitigation of the entire case in circumstances like these.
Because we conclude that Roell and Garibay impliedly consented to the Magistrate Judge’s authority, we need not address whether express postjudgment consent would be sufficient in a case where there was no prior consent, either express or implied. We also have no opportunity to decide Whether the Court of Appeals was correct that lack of consent is a “jurisdictional defect” that can be raised for the first time on appeal.
Reference
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- ROELL Et Al. v. WITHROW
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- Published