dissenting:
I respectfully dissent. The referral of this case to the magistrate was authorized by the statute. Furthermore, Clark waived his right to challenge the magistrate’s authority by failing to object below. The judgment should be affirmed.
I.
A.
The referral was authorized by the provision in 28 U.S.C. § 686(b)(1)(B) for “prisoner petitions challenging conditions of confinement.” The majority errs by adopting the narrow formulation of Judge Swygert’s concurrence in Hill v. Jenkins, 603 F.2d 1256, 1259-60 (7th Cir.1979), which is not supported by reason or authority.1 This court should follow the two circuits which have interpreted section 636(b)(1)(B) to authorize the referral to a magistrate of prisoner suits complaining of specific incidents. See McCarthy v. Bronson, 906 F.2d 835, 839 (2d Cir.1990); Thompson v. Nix, 897 F.2d 356, 357 (8th Cir.1990); Branch v. Martin, 886 F.2d 1043, 1045 & n. 1 (8th Cir.1989).2
“Subsection 636(b)(1)(B) was added in 1976 as part of a broadening of the authority of magistrates. Act of Oct. 21, 1976, Pub.L. 94-577, 90 Stat. 2729. The House Report does not explain the category ‘prisoner petitions challenging conditions of confinement’ but does refer to ‘petitions under section 1983 of Title 42.’ H.R.Rep. No. 1609, 94th Cong., 2d Sess. 11, reprinted in 1976 U.S.Code Cong. & Admin.News 6162, 6171_
*1435We see no reason why a Magistrate with clear authority to hold hearings and recommend findings as to the unconstitutionality of continuing prison conditions may not perform a similar function as to specific episodes of unconstitutional conduct by prison officials. The phrase ‘conditions of confinement’ appears not to have been selected as a limitation to preclude episodes of misconduct, but rather as a generalized category covering all grievances occurring during prison confinement.”
McCarthy v. Bronson, 906 F.2d at 839.
According to the majority, a suit alleging that a prisoner was beaten once must be heard by an Article III judge, but a claim that the prisoner is beaten daily may be referred to a magistrate. Limiting the magistrate’s jurisdiction to the more serious claim makes no sense, and nothing in the legislative history persuades me that Congress intended such an anomaly. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 3252, 73 L.Ed.2d 973 (1982) (“interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available”); American Tobacco Co. v. Patterson, 456 U.S. 63, 71, 102 S.Ct. 1534, 1538, 71 L.Ed.2d 748 (1982) (“Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible.”). Their interpretation conflicts with the legislative intention to give magistrates broad authority to assist judges. See H.R.Rep. No. 1609, 94th Cong., 2d Sess. 6-8, reprinted in 1976 U.S. Code Cong. & Admin.News 6162, 6166-68.
One of the incidents in this case occurred shortly after Clark was arrested. The other took place while he was in pretrial detention. At neither time was he free to leave. Certainly, he was in confinement.3 See Wimmer v. Cook, 774 F.2d 68, 69, 74 (4th Cir.1985) (pretrial detention); see also Worley v. Sharp, 724 F.2d 862, 863 (10th Cir.1983) (same), reh’g denied, 759 F.2d 786 (10th Cir.1985). Because his complaint challenged conditions of his confinement, section 636(b)(1)(B) authorized the referral.
B.
If the referral was not authorized by that subsection, it was authorized by section 636(b)(3). The articulation of specific duties in subsection (b)(1)(B) did not “implicitly withhold[ ] other duties not so speci-fied_” Supra at 1431. Subsection (b)(3) is a “ ‘catchall’ provision.” Garcia v. Boldin, 691 F.2d 1172, 1178 (5th Cir.1982); accord, e.g., King v. Ionization Int’l, Inc., 825 F.2d 1180, 1185 (7th Cir.1987). “Where the district court is not specifically empowered to refer a case, it may do so under the general provision of 28 U.S.C. § 636(b)(3)....” Hall v. Vance, 887 F.2d 1041, 1046 (10th Cir.1989).
In Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976), the Supreme Court reviewed the legislative history of the original Act:
“The three examples § 636(b) sets out are, as the statute itself states, not exclusive. The Senate sponsor of the legislation, Senator Tydings, testified in the House hearings:
‘The Magistrate[s] Act specifies these three areas because they came up in our hearings and we thought they were areas in which the district courts might be able to benefit from the magistrate’s services. We did not limit the courts to the areas mentioned....
‘We hope and think that innovative, imaginative judges who want to clean up their caseload backlog will utilize the U.S. magistrates in these areas and perhaps even come up with new areas to increase the efficiency of their courts.’ ”
Id. at 267, 96 S.Ct. at 553 (quoting Hearings on the Federal Magistrates Act Before Subcomm. No. 4 of the House Comm, on the Judiciary, 90th Cong., 2d Sess. 81 (1968)). The legislative history of the 1976 *1436amendments to the Act confirms the expansiveness of subsection (b)(3):
“This subsection enables the district courts to continue innovative experimen-tations in the use of this judicial officer. At the same time, placing this authorization in an entirely separate subsection emphasizes that it is not restricted in any way by any other specific grant of authority to magistrates.”
H.R.Rep. No. 1609, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Admin.News 6162, 6172 (emphasis added). The statutory authorization for referring to magistrates prisoner petitions challenging conditions of confinement was not meant as a bar to the referral of prisoner petitions unrelated to conditions of confinement.4 See, e.g., John v. Louisiana, 899 F.2d 1441, 1446 (5th Cir.1990) (subsection (b)(3) authorizes post-trial referral of sanctions question even though subsection (b)(1)(A) only refers to pretrial matters).
As is true of the majority’s construction of subsection (b)(1)(B), their construction of subsection (b)(3) has absurd consequences. If (b)(3) only applies to matters not addressed in (b)(1), then a suit by a prisoner about something which preceded his confinement may not be referred to a magistrate (because it is “a prisoner’s petition that does not challenge a condition of confinement,” supra at 1431) but a suit by a non-prisoner making an identical allegation may be.
II.
I also disagree with the majority’s conclusion that the absence of statutory authorization for a magistrate’s participation is a non-waivable jurisdictional defect. I would hold that the issue was waived by Clark’s failure to object below.
The authority upon which the majority relies does not support its conclusion. Many of the cited cases do not address the effect of a failure to object to a referral to a magistrate. See Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989); Houghton v. Osborne, 834 F.2d 745 (9th Cir.1987); Lovelace v. Dall, 820 F.2d 223 (7th Cir.1987); In re Morrissey, 717 F.2d 100 (3d Cir.1983). In the others, the failure to object was excused on grounds other than non-waivability. See United States v. Martinez-Torres, 912 F.2d 1552, 1554 & n. 3 (1st Cir.1990) (objection would have been futile because of existing circuit authority); United States v. France, 886 F.2d 223, 228 (9th Cir.1989) (same), cert. granted, — U.S. -, 110 S.Ct. 1921, 109 L.Ed.2d 285 (1990)5; Hall v. Sharpe, 812 F.2d 644, 649 (11th Cir.1987) (appellant was allowed to rely upon the appellee’s objection to proceeding before a magistrate). Taylor v. *1437Oxford, 575 F.2d 152, 154-55 (7th Cir.1978), appears to agree with the majority, but that opinion, as well as Lovelace v. Dall, 820 F.2d 223 (7th Cir.1987), has been superseded by United States v. Wey, 895 F.2d 429 (7th Cir.), cert. denied, — U.S. -, 110 S.Ct. 3283, 111 L.Ed.2d 792 (1990).6
The cases which consider the issue hold that a magistrate’s lack of statutory authority is not a jurisdictional defect, so any objection is waived if not raised. See id. at 431; Mylett v. Jeane, 879 F.2d 1272, 1275 (5th Cir.1989); United States v. Vanwort, 887 F.2d 375, 382-83 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1927, 109 L.Ed.2d 290 (1990); see also Government of the Virgin Islands v. Williams, 892 F.2d 305, 309-312 (3d Cir.1989) (failure to object constitutes consent to reference), cert. denied, — U.S. -, 110 S.Ct. 2211, 109 L.Ed.2d 537 (1990).7
Any error below was a procedural lapse, not a jurisdictional failing. Archie v. Christian, 808 F.2d 1132, 1134-35 (5th Cir.1987). “We do not have a ‘jurisdictional’ problem.... We have at most a mistaken interpretation of a law designating which judicial officer shall preside over which proceedings.” United States v. Wey, 895 F.2d at 431.
Gomez does not control, for the appellant there did object to the magistrate’s involvement. United States v. Sawyers, 902 F.2d 1217, 1220 (6th Cir.1990); United States v. Mang Sun Wong, 884 F.2d 1537, 1545 (2d Cir.1989), cert. denied, — U.S. -, 110 5.Ct. 1140, 107 L.Ed.2d 1045 (1990). Gomez’s, mention of “jurisdiction” does not mean that the Act is a jurisdictional statute. “[T]he word is a many-hued term_ Gomez uses the word ‘jurisdiction’ in a context revealing that the Court meant ‘authority.’ ” United States v. Wey, 895 F.2d at 431; accord United States v. Musacchia, 900 F.2d 493, 503 (2d Cir.1990) (court is “[ujnable to square the Supreme Court’s use of the word ‘jurisdiction’ with traditional notions of subject matter jurisdiction”); Black’s Law Dictionary 443 (abr. 5th ed. 1983) (“The word is a term of large and comprehensive import, and embraces every kind of judicial action.”).
III.
On August 18, 1987, the magistrate held an evidentiary hearing, which was recorded. On September 16, he recommended that Clark’s suit be dismissed. Clark objected to this recommendation, but on December 31 the district court dismissed the action. The dismissal order states that the court “made a de novo review” of the case, R. Vol. I, Tab 49, at 2, but the recording of the evidentiary hearing had not yet been transcribed.
“When objections are made to the magistrate’s factual findings based on conflicting testimony or evidence, both § 636(b)(1) and Article III of the United States Constitution require de novo review.” Gee v. Estes, 829 F.2d 1005, 1008 (10th Cir.1987). “In conducting this review, the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing.” Id. at 1009.
Gee was decided three months before the district court dismissed Clark’s action. We presume that the district court knew the relevant law, United States v. Lowden, 905 F.2d 1448, 1449 n. 1 (10th Cir.1990), so the court’s statement that it conducted a de novo review must be taken to mean that it listened to the tape recording of the hearing before it dismissed Clark’s suit. Indeed, because of the expense and delay8 of transcription, district courts commonly listen to a tape rather than await a transcript.
*1438Branch v. Martin, 886 F.2d 1043 (8th Cir.1989), which remanded in similar circumstances, is distinguishable. As here, the district court adopted the magistrate’s recommendations before the transcript of a recorded hearing was prepared. As here, the district court stated that it had conducted a de novo review, but did not say anything about listening to the tape. Id. at 1046; see also Moran v. Morris, 665 F.2d 900, 901-02 (9th Cir.1981) (court of appeals remanded for further review of tape-recorded proceedings before magistrate after district court adopted magistrate’s recommendations the day they were issued). The important distinction is that Branch announced for the Eighth Circuit the rule we adopted in Gee. The district court in Branch did not have the benefit of that decision, but the court below was aware of Geé. The doubts the Eighth Circuit held about the breadth of that district court’s review would be unfounded here.
IV.
On the merits of Clark’s claims, I agree with the decision of the district court. Accordingly, I would affirm the judgment.
. Judge Swygert’s concurrence cites no authority for his narrow construction of the statute, and the cases adopting his construction cite no authority other than the concurrence and the other cases adopting it.
In addition, it is not clear that the Eleventh Circuit agrees with Judge Swygert. Hall v. Sharpe, 812 F.2d 644, 647 n. 1 (11th Cir.1987), involved a complaint alleging a single incident, but the judgment below was reversed not because the incident was not a condition of confinement, but because section 636(b)(1)(B) does not authorize magistrates to preside over jury trials. Because the citation in Hall to Hill is dictum, "only two circuits,” supra at 1429, clearly interpret "conditions of confinement” to exclude single incidents.
. The majority’s suggestion that the Eighth Circuit does not disagree with their interpretation of the statute is incorrect. That court has approved the referral to a magistrate, as "prisoner petitions challenging conditions of confinement," a claim that prison officials "assault[ed the plaintiff] on two occasions,” Thompson v. Nix, 897 F.2d at 357, and a claim that “on September 10, 1986, when defendants escorted [plaintiff] from a waiting room to his cell, defendants used excessive force against him,” Branch v. Martin, 886 F.2d at 1044. Moreover, some of the cases cited in Branch fall outside the majority’s construction of the statute. The plaintiff in Gee v. Estes, 829 F.2d 1005, 1006 (10th Cir.1987), alleged, inter alia, an incident where "he was dragged into court with no clothing on except an oversized pair of trousers which dropped to his knees to expose him to the spectators." The plaintiff in Cay v. Estelle, 789 F.2d 318, 319 (5th Cir.1986), alleged "that on August 3, 1982, when [he] asked to be relieved from work duties because of a back injury, he was beaten severely....”
. "Confinement” is the "[s]tate of being confined” or "shut in” "by either a moral or a physical restraint, by threats of violence with a present force, or by physical restraint of the person." Black’s Law Dictionary 157 (abr. 5th ed. 1983).
. Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), does not require a contrary conclusion. There, the Court concluded that "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," id. at 2245, because
"[w]hen 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.”
Id. at 2241. Presiding over a felony trial bears no relation to the duties specified in the statute, but presiding over a prisoner’s section 1983 action does.
Also, unlike in Gomez, the majority's construction of the statute does not avoid deciding a constitutional issue, for this court has already held that Article III allows a magistrate to preside over a civil matter so long as the district court reviews the matter de novo. Marvel v. United States, 719 F.2d 1507, 1513 (10th Cir.1983). (That the parties in that case consented to proceeding before the magistrate is irrelevant, for parties cannot expand Article III limitations on a tribunal’s jurisdiction. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982).)
. While the Ninth Circuit decided the case on different grounds, one of the issues before the Supreme Court, to be heard Tuesday, October 2, is whether a magistrate’s lack of statutory authority is a non-waivable defect. See Brief of the United States at 19-21, United States v. France, — U.S. -, 110 S.Ct. 1921, 109 L.Ed.2d 285 (1990). In my view, we should "decline appellant’s invitation to rule in a vacuum,” United States v. De La Cruz, 902 F.2d 121, 125 (1st Cir.1990), and await the Court’s decision before deciding the instant case. Deciding the matter immediately serves little purpose, but risks wasting judicial resources.
. Similarly, Government of the Virgin Islands v. Williams, 892 F.2d 305 (3d Cir.1989), calls In re Morrissey, 717 F.2d 100 (3d Cir.1983), into doubt.
. A panel of the First Circuit also reached this conclusion in United States v. Lopez-Pena, 890 F.2d 490, 495 n. 6 (1st Cir.1989) (advance edition), but the opinion was withdrawn so the case could be reheard en banc and the en banc opinion does not address the issue. See United States v. Martinez-Torres, 912 F.2d at 1558 n. 8 (Selya, J., dissenting).
. The transcript in this case was not prepared until almost 14 months after the hearing was held. See R.Supp. Vol. II.