UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40627
JON MICHAEL WITHROW,
Plaintiff-Appellant,
versus
JOSEPH C. ROELL; JERRY BALLARD; PETRA GARIBAY; J. REAGAN, M.D.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
April 8, 2002
Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
This matter having been referred to a magistrate judge
pursuant to 28 U.S.C. § 636(c) (on referral and upon parties’
consent, may try civil case and enter judgment), primarily at issue
is whether, when all parties fail to consent pre-trial, but trial
is held and judgment entered by the magistrate judge, post-judgment
consent cures the pre-trial failure. Defendants contend: pre-
trial, all parties consented; alternatively, their post-judgment
consent confers jurisdiction on the magistrate judge. VACATED AND
REMANDED.
I.
In 1997, Jon Michael Withrow, pro se, filed this 42 U.S.C. §
1983 action, claiming members of his prison’s medical staff (Joseph
Roell, Jerry Ballard, Danny Knutson, Petra Garibay, and Dr. James
Reagan) acted deliberately indifferently to his medical needs, in
violation of, inter alia, his Eighth Amendment rights. Withrow
gave written consent to trial and entry of judgment by a magistrate
judge.
Therefore, pursuant to 28 U.S.C. § 636(c), the district judge
referred the action to a magistrate judge, but reminded that all
defendants had to also consent to such participation by a
magistrate judge (consent). Only Dr. Regan did so (written).
In early 1998, the magistrate judge dismissed all claims
except concerning the Eighth Amendment and dismissed Ballard.
(Ballard’s dismissal is reflected in the final judgment entered 16
May 2000, from which this appeal is taken.) In March 1999, the
magistrate judge denied summary judgment for the remaining
defendants. Pre-trial, Withrow settled with Knutson; he was
dismissed.
The remaining parties proceeded to trial before the magistrate
judge, with a jury finding for defendants. The magistrate judge
entered final judgment in May 2000, and Withrow timely appealed.
But, sua sponte, our court questioned whether the requisite
consent had been given by all parties and ordered a limited remand
2
for “the district court [to] determine whether the parties
consented ... and, if so, whether the consents were oral or
written”. Withrow v. Roell, No. 00-40627, at 2 (5th Cir. 21 Nov.
2000) (unpublished). Our court retained jurisdiction. Id. See,
e.g., Wheeler v. City of Columbus, Miss., 686 F.2d 1144, 1154 (5th
Cir. 1982) (retaining jurisdiction pending district court
compliance with remand).
On remand, the remaining defendants (Roell, Garibay, and Dr.
Reagan (Defendants)) gave written consent. In a report and
recommendation, the magistrate judge stated: pre-trial, Roell and
Garibay never consented; and their post-judgment consent did not
cure the jurisdictional defect. Withrow v. Roell, No. C-97-256, at
4 & n.3 (S.D. Tex. 8 Jan. 2001) (unpublished). Over Defendants’
objections, the district court adopted the report and
recommendation. Withrow v. Roell, No. C-97-256 (S.D. Tex. 1 Mar.
2001) (unpublished). Defendants’ motion to reconsider was denied.
II.
“Upon the consent of the parties, a ... United States
magistrate [judge] ... may conduct any or all proceedings in a jury
or nonjury civil matter and order the entry of judgment ... when
specially designated to exercise such jurisdiction by the district
court.” 28 U.S.C. § 636(c)(1) (emphasis added); see FED. R. CIV. P.
73 (procedures for consent and referral to a magistrate judge);
FED. R. CIV. P. APPENDIX OF FORMS, Official Form 33 (“Notice of
3
Availability of Magistrate Judge to Exercise Jurisdiction”); id.,
Official Form 34 (“Consent to Exercise of Jurisdiction by a United
States Magistrate Judge”). At issue is whether, pre-trial,
Defendants consented; and, if they did not, whether their post-
judgment consent is effective.
When, pursuant to § 636(c)(1), the magistrate judge enters
final judgment, lack of consent and defects in the order of
reference are jurisdictional errors; as such, they cannot be
waived. See Hill v. City of Seven Points, 230 F.3d 167, 168-69
(5th Cir. 2000); Mendes Jr. Int’l Co. v. M/V Sokai Maru, 978 F.2d
920, 923-24 (5th Cir. 1992); EEOC v. W. La. Health Servs., Inc.,
959 F.2d 1277, 1281-82 & nn.3 & 4 (5th Cir. 1992). In keeping with
this, § 636(c) consent must be express; it cannot be implied by the
parties’ conduct. W. La. Health Servs., 959 F.2d at 1281; Trufant
v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir. 1984) (“consent must
be explicit, and will not be casually inferred from the conduct of
the parties”).
A.
Pre-trial, only Dr. Regan filed written consent. Defendants
contend Roell and Garibay, pre-trial, gave consent orally. Whether
they did involves a finding of fact, reviewed only for clear error.
E.g., Walker v. City of Mesquite, 169 F.3d 973, 982 (5th Cir.
1999), cert. denied, 528 U.S. 1131 (2000).
4
To show Roell and Garibay’s consent, Defendants point to an
April 1999 teleconference, with appearances by Withrow and
Defendants’ counsel, at which the magistrate judge stated to the
latter: “Also, if you talk to Mr. Knutson [defendant who settled
pre-trial with Withrow], ... would you tell him ... that he needs
to let us know whether he’s going to consent to my jurisdiction as
well, because all defendants need to consent....” Defendants’
counsel responded: “Good point, yes, Your Honor”. According to
Defendants, the import of this colloquy is that the magistrate
judge “thereby stated ... she thought Roell, Garibay, and Dr.
Reagan had all consented” and Defendants’ counsel confirmed that
assumption.
As further evidence of Roell and Garibay’s claimed pre-trial
consent, Defendants cite another magistrate judge teleconference
(July 1999). Withrow and Defendants’ counsel appeared, together
with Knutson’s counsel. The magistrate judge stated to the latter:
“[Y]our client [Knutson] has the right to not consent ... and I
don’t know what your position is on that.... [A]ll of the other
parties have consented....” According to Defendants, these other-
parties-had-consented comments were correct.
Finally, Defendants cite to the magistrate judge’s statement
to the jury: “In ... any civil case in which [the] parties consent
to my jurisdiction, I do have civil jurisdiction to hear civil jury
trials....”
5
Obviously, through none of these relied upon statements did
Roell and Garibay consent. At best, they represent only the
magistrate judge’s assumption that they had. On remand, the
magistrate judge found she had been mistaken in her assumption that
Roell and Garibay had executed consent forms. Withrow v. Roell,
No. C-97-256, at 2 & n.2 (S.D. Tex. 8 Jan. 2001) (unpublished).
Accordingly, the basis of her assumption had been that written, not
oral, consent had been given.
In short, there is no evidence in the record of pre-trial
consent by all parties. The corresponding finding is not clearly
erroneous.
B.
Accordingly, we must determine whether, as the district court
held, the post-judgment consent was not effective. We review this
jurisdictional question de novo. E.g., United States v. Bustos-
Useche, 273 F.3d 622, 626-27 (5th Cir. 2001).
1.
Notwithstanding the plain language of § 636(c), discussed
infra, Defendants note the Seventh and Eleventh Circuits have
repeatedly held post-judgment consent effective. See Rembert v.
Apfel, 213 F.3d 1331, 1335 n.1 (11th Cir. 2000) (“Parties can
consent even after judgment.”); Drake v. Minn. Mineral & Mfg. Co.,
134 F.3d 878, 883 (7th Cir. 1998) (consent post-appellate oral
argument sufficient); Gen. Trading, Inc. v. Yale Materials Handling
6
Corp., 119 F.3d 1485, 1496-97 (11th Cir. 1997) (post-judgment
consent effected by parties’ withdrawing their new-trial motion and
thereby accepting magistrate judge’s judgment; such consent
effective), cert. denied, 523 U.S. 1055 (1998); Smith v. Shawnee
Library Sys., 60 F.3d 317, 320-21 (7th Cir. 1995) (post-judgment
consent unequivocal representation magistrate judge acting with
parties’ consent); King v. Ionization Int’l, Inc., 825 F.2d 1180,
1185 (7th Cir. 1987) (post-judgment consent sufficient where
parties executed consent several weeks after entry of order
appealed).
The Ninth Circuit, however, has held otherwise. See Hajek v.
Burlington N. R.R. Co., 186 F.3d 1105, 1108 (9th Cir. 1999)
(consent not effective where made in appellate brief). The
district court cited Hajek in holding the post-judgment consent did
not “cure the jurisdictional defect”. Withrow v. Roell, No. C-97-
256 (S.D. Tex. 1 Mar. 2001) (unpublished).
Our court’s primary precedent is found in Archie v. Christian,
808 F.2d 1132 (5th Cir. 1987) (en banc), where a prisoner’s civil
rights action had been referred to a magistrate judge. Although
trial was held without objection by plaintiff, id. at 1133-34,
defendants did object. They ceased doing so, however, upon the
jury’s returning a favorable verdict. Id. at 1134.
By report and recommendation, the magistrate judge in Archie
recommended that defendants’ objection be overruled because the
7
referral was proper under 28 U.S.C. § 636(b). Unlike § 636(c),
which, as noted, allows a magistrate judge, upon a district
judge’s referral and the parties’ consent, to enter final judgment
in a civil action, § 636(b) only authorizes a magistrate judge,
upon referral, to hear and determine certain pre-trial matters and
to conduct an evidentiary hearing and then submit a recommendation
to the district judge for disposition of an action. Accordingly,
the magistrate judge recommended that the district court adopt the
jury’s findings. Id. The district court did so and entered final
judgment. Id.
At issue before our en banc court was whether a trial before
a magistrate judge without all parties’ consent, followed by a
district judge’s entry of judgment, was a procedural error, subject
to waiver, or was instead a jurisdictional error. Our court held
that, although the parties had not consented, this did not deprive
the district judge of jurisdiction to enter the judgment. Id. at
1135. But, our court noted: had the appeal challenged this
defective, non-jurisdictional procedure, it would have been
reversible error. Id. In other words, the failure to challenge it
resulted in the issue’s not being before the en banc court.
In considering the necessity for consent, our court recognized
that § 636(b) does not authorize referral of prisoner litigation to
a magistrate judge for a jury trial. Id.; see Ford v. Estelle, 740
F.2d 374, 380 (5th Cir. 1984). Accordingly, our court observed
8
that, because § 636(b) was unavailable, § 636(c) was the only means
by which the action could be referred. Id.
Concerning § 636(c), our court issued the following directive:
[I]n our circuit, no jury trial of this kind
can be conducted by a magistrate [judge]
without the consent of all parties, given in
writing and filed before trial commences....
[I]n the exercise of our supervisory powers,
we direct that before commencing ... trial in
any civil case in which a magistrate [judge]
is to preside pursuant to ... § 636(c), ... he
shall inquire on the record of each party
whether he has filed consent to [his]
presiding and shall receive an affirmative
answer from each on the record before
proceeding further.
Id. at 1137 (emphasis added).
At first glance, Archie’s requiring pre-trial consent appears
to control the outcome in the case at hand; here, the consent was
post-judgment. This directive, however, is dictum. Restated, and
as discussed supra, our court determined that the error in Archie
was non-jurisdictional and had been waived; therefore, our court’s
directive as to when and how consent must be given was not
necessary to the holding.
2.
Accordingly, whether, pursuant to § 636(c), post-judgment
consent is effective is a question of first impression for our
circuit. Statutory interpretation begins, of course, “with the
plain language of the statute”. Moosa v. INS, 171 F.3d 994, 1008
(5th Cir. 1999). “When the language [of the statute itself] is
9
plain we must abide by it; we may depart from its meaning only to
avoid a result so bizarre that Congress could not have intended
it.” Id. (alteration in original; internal quotation marks
omitted).
Our court’s directive in Archie, that consent be pre-trial,
adheres to the plain language of § 636(c)(1). The statute reads,
in part: “Upon the consent of the parties, a ... United States
magistrate [judge] ... may conduct any or all proceedings in a
nonjury civil matter and order the entry of judgment in the
case....” 28 U.S.C. § 636(c)(1) (emphasis added). The use of
“upon” and “may conduct” compels the conclusion that the statute
requires consent being given before a magistrate judge can act
pursuant to § 636(c). The timing of the consent equates with a
condition precedent to the magistrate judge’s acting. In other
words, only after the parties give consent is a magistrate judge
then vested with jurisdiction to act. Post-judgment consent is
contrary to the scheme established by this plain language.
Because the statute’s language is plain, and its application
does not lead to absurd results, we need not look to its
legislative history. In any event, that history supports this
construction. When Congress amended § 636 in 1979 to allow
magistrate judges, upon consent of the parties and referral by a
district judge, to handle dispositive matters, “[t]he Bill clearly
require[d] the voluntary consent of the parties as a prerequisite
10
to a magistrate[] [judge’s] exercise of the new jurisdiction”. S.
REP. NO. 96-74, at 5 (1979), reprinted in 1979 U.S.C.C.A.N. 1469,
1473 (emphasis added). Consent being a “prerequisite to ... [the]
exercise of ... jurisdiction” compels the conclusion that it must
come before, and not after, the magistrate judge conducts the
proceedings and enters final judgment.
A common sense reason for this being required, as reflected in
Archie’s directive, is that, if consent is allowed post-judgment,
or even post-trial but pre-judgment, a party can withhold consent,
hope its lack is not noticed, and, once the verdict is known: (1)
if it is favorable, consent; or (2) if it is not favorable, bring
the lack of consent to the attention of either the district court
or the appellate court, in which case that party will be entitled
to a new trial. Obviously, the potential for such abuse must be
removed.
Requiring pre-trial consent does so. The Seventh Circuit in
Shawnee Library recognized these gamesmanship concerns, but, being
bound by its circuit precedent, it stated: “Rather than write a
treatise on game theory, however, we simply note that King [v.
Ionization, Int’l, 825 F.2d 1180, 1185 (7th Cir. 1987)] controls”.
60 F.3d at 321.
A further reason why we must conclude that the Seventh and
Eleventh Circuits’ decisions on this issue are contrary to the
statute is because their reasoning is foreclosed by our earlier-
11
discussed circuit precedent that consent cannot be implied. The
above-referenced King is the seminal case holding post-judgment
consent effective. The earlier-cited Seventh and Eleventh Circuit
decisions, with the exception of Drake, all rely on King. (Without
citing authority, Drake held post-appellate-oral-argument consent
effective, but its rationale that the post-judgment consents
“indicate that [the parties] consented to trial by magistrate
judge” is consistent with the King rationale, discussed below. See
Drake, 134 F.3d at 883 (emphasis added).)
King reasoned the belated consent is effective because there,
the parties’ post-judgment statement that the proceedings before
the magistrate judge were with their consent was “an unequivocal
representation that the magistrate was acting with the parties’
consent”. 825 F.2d at 1185. Such reasoning, however, necessarily
infers from the parties’ post-trial statement that there was pre-
trial consent. In other words, because the parties, post-judgment,
state the earlier proceedings were with their consent, that must
mean the proceedings occurred with their consent. Again, this is
simply an inference from the parties’ post-trial conduct.
But, as stated, our court has held that consent may not be
inferred from the parties’ actions — in this instance, the post-
judgment consent. See W. La. Health Servs., 959 F.2d at 1281.
Accordingly, because the King reasoning is based upon an inference
of consent, it is inconsistent with our court’s § 636(c) precedent.
12
Our holding that consent must be pre-trial requires,
unfortunately, that this matter be re-tried at the expense of the
parties and the judicial system. But, even if we were to adopt the
Seventh and Eleventh Circuit’s approach, this outcome could not be
avoided in all cases. For example, had the verdict been favorable
to Withrow, we doubt Defendants would have given consent post-
judgment. Under that scenario, we still would be required to
remand for a new trial.
III.
For these reasons, consent of all the parties must be given
prior to a § 636(c) trial commencing. Our en banc court in Archie,
with the opinion authored by the late Judge Thomas Gibbs Gee, noted
that § 636 “requires the consent of all parties, incorporating
explicit provisions safeguarding the voluntariness of that consent;
and rules, both federal and local, are in place to insure that no
dragooning takes place”. 808 F.2d at 1136 (emphasis added).
Certainly, there can be “no dragooning”; likewise, there can be no
post-judgment consent.
In her report and recommendation on remand, the magistrate
judge noted our court in Archie had “attempted to avoid problems
such as the one which occurred here by ordering, in the court’s
supervisory capacity, that before a trial by a magistrate judge
commences, the magistrate shall confirm the consent of all parties
on the record”. Withrow v. Roell, No. C-97-256, at 4 n.3 (S.D.
13
Tex. 8 Jan. 2001) (unpublished). To her credit, the magistrate
judge sincerely regretted, and apologized for, not having done so.
Id. at 4 n.4.
Hoping to prevent such mistakes in the future, we repeat our
court’s en banc directive in Archie:
[I]n our circuit, no jury trial of this kind
can be conducted by a magistrate [judge]
without the consent of all parties, given in
writing and filed before trial commences....
[I]n the exercise of our supervisory powers,
we direct that before commencing ... trial in
any civil case in which a magistrate [judge]
is to preside pursuant to ... § 636(c), ... he
shall inquire on the record of each party
whether he has filed consent to the magistrate
[judge’s] presiding and shall receive an
affirmative answer from each on the record
before proceeding further.
Id. at 1137 (emphasis added).
For the foregoing reasons, the judgment is VACATED, and this
matter is REMANDED for further proceedings, consistent with this
opinion, against defendants Joseph C. Roell, Jerry Ballard, Petra
Garibay, and Dr. James Reagan.
VACATED AND REMANDED
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