Hill v. City of Seven Points

                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                        ____________________

                           No. 99-41022
                       ____________________

                           MARIAN HILL,
                                               Plaintiff-Appellee,

                              versus

                   CITY OF SEVEN POINTS; ET AL.,

                                                       Defendants,

        CITY OF SEVEN POINTS; TERESA DRUM, Individually and in
    official capacity; ROGER ALLEN, Individually and in official
  capacity; C. W. DANIEL, Individually and in official capacity;
       RANDY WHITEHURST, Individually and in official capacity;
        ANNIE LONGACRE, Individually and in official capacity;
      TOMMIE TAYLOR, Individually and in official capacity; DON
      ALLSUP, Individually and in official capacity; MARY REID,
 Individually and in official capacity; MARIE DAVIS, Individually
     and in official capacity; LYNN CLOWDUS, Individually and in
  official capacity; FOREST EVERITT, Individually and in official
capacity; CLAUDETT ALLSUP, Individually and in official capacity;
         GERALD TAYLOR, Individually and in official capacity,

                                           Defendants-Appellants.
_________________________________________________________________

           Appeal from the United States District Court
                for the Eastern District of Texas

_________________________________________________________________
                         October 11, 2000
Before BARKSDALE and BENAVIDES, Circuit Judges, and VELA*, District

Judge.

RHESA HAWKINS BARKSDALE, Circuit Judge:



     *
          District Judge of the Southern District of Texas, sitting
by designation.
     This appeal is from a magistrate judge’s denial of Appellants’

summary    judgment     motion   based   on   the    defenses      of    absolute,

qualified,    and   sovereign    immunity.         Pursuant   to   28    U.S.C.   §

636(c)(1), the parties consented to proceed to final judgment before

the magistrate judge; however, the order of reference included in

the consent form lacks the signature of the district judge. Because

we are unsure whether, absent that signature, the magistrate judge

had jurisdiction to render a final judgment, and, therefore, are

unsure whether we have jurisdiction over this appeal, we REMAND.

     The     district    court’s    order     of     reference,     or    special

designation, pursuant to § 636(c)(1), is a jurisdictional concern.

See Mendes Jr. Int’l Co. v. M/V Sokai Maru, 978 F.2d 920, 924 (5th

Cir. 1992) (“[A]bsence of the appropriate consent and reference (or

special designation) order results in a lack of jurisdiction (or at

least fundamental error that may be complained of for the first time

on appeal).”); Parks v. Collins, 761 F.2d 1101, 1105-06 (5th Cir.

1985) (“[F]atal to the magistrate’s exercise of authority is the

lack of any order of reference from the district judge.”).

None of the parties raised this jurisdictional issue on appeal.                   Of

course, we “must examine the basis of [our] jurisdiction, on [our]

own motion, if necessary”.       Mosley v. Cozby, 813 F.2d 659, 660 (5th

Cir. 1987).

     “Upon the consent of the parties, a full-time magistrate

[judge] ... may conduct any or all proceedings in a jury or nonjury


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civil matter and order the entry of judgment in the case, when

specially designated to exercise such jurisdiction by the district

court or courts he serves.” 28 U.S.C. § 636(c)(1) (emphasis added).

Courts have not defined “specially designated”.              Instead, they most

often have addressed the parties’ lack of consent as ground for a

denial of jurisdiction.      See, e.g., United States v. Muhammad, 165

F.3d 327, 329-31 (5th Cir.), cert. denied, 526 U.S. 1138 (1999);

General Trading, Inc. v. Yale Materials Handling Corp., 119 F.3d

1485, 1494-97 (11th Cir. 1997), cert. denied, 523 U.S. 1055 (1998);

Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995).

     Here, there is no special designation by the district court.

Under the district court’s local rule, once the consent form is

signed “and filed, the clerk shall transmit it to the district judge

to whom the case has been assigned for approval and referral of the

case to a magistrate judge”.          E.D. TEX. R. app. B, Rule (3)(B)(3)

(emphasis added). Although the parties signed the consent form, the

“Order   of    Reference”   portion    of     that   form,   which   includes   a

signature line for the district judge, is not signed.

     Since July 1998, and pursuant to the district court’s General

Order No. 98-10, it appears that matters have been referred and

assigned directly to magistrate judges.              Regarding civil actions,

that order states:

              1.   Prisoner suits shall be referred at the
                   time of filing equally among magistrate
                   judges   with  concurrent   civil  case

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                  responsibilities except as specified.
                  Prisoner suits shall automatically be
                  assigned to the magistrate judge to whom
                  the case originally was referred when
                  parties consent to trial and entry of
                  judgment by a magistrate judge.

           2.     All other civil matters shall be referred
                  or assigned randomly except as specified
                  above or unless a specific order of the
                  court directs otherwise.

E.D. TEX. GEN. ORDER NO. 98-10.II.A. (emphasis added).

      At hand is a nonprisoner civil action.             For prisoner actions,

the   general    order   apparently    provides    the       requisite   order   of

reference for the magistrate judge to enter a final judgment

pursuant to § 636(c), in that the assignment is automatic upon the

consent of the parties.       But, for nonprisoner civil cases, such as

the one before us, it is questionable whether the general order

authorizes more than the initial order of reference for a magistrate

judge to rule on matters pursuant to § 636(b)(1).                   Restated, it

appears   that    more   is   needed   to     satisfy    §    636(c)’s   “special

designation” requirement.       Compare 28 U.S.C. § 636(b)(1) (“a judge

may designate”) with id. § 636(c)(1) (“when specially designated”).

      The above-noted lack of the district judge’s signature on the

order of reference emphasizes the possible need, for this action,

for authorization in addition to the general order.               If the general

order made referrals in nonprisoner civil cases automatic, the

consent form presumably would not specifically require an order of




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reference from a district judge.             Yet, as stated, the consent form

in issue has such a provision.

     Of    course,   without        the   requisite       §     636(c)(1)    special

designation,    we   lack    jurisdiction          over   the    appeal     from    the

magistrate judge’s summary judgment ruling.                      See 28 U.S.C. §

636(b)(1) (requiring district court consideration of objections to

magistrate judge’s recommendation); EEOC v. West La. Health Servs.,

Inc., 959 F.2d 1277, 1282 (5th Cir. 1992) (“[W]hen the judgment on

a matter is entered by the district court, and not the magistrate,

failure to obtain the consent of the parties to the proceeding

before    the   magistrate     is     only     a    procedural     error,     not     a

jurisdictional error.” (emphasis in original)).

     Because, in the light of the district judge’s not signing the

post-consent reference order, it appears we lack jurisdiction, this

case is REMANDED for further proceedings.

                                                                       REMANDED




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