PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________ FILED
No. 97-8171 U.S. COURT OF APPEALS
_______________ ELEVENTH CIRCUIT
2/19/03
D. C. Docket No. 1:95-CV-917-WLH
THOMAS K. KAHN
CLERK
SABRINA BARNETT,
Plaintiff-Appellant,
versus
GENERAL ELECTRIC CAPITOL CORPORATION,
Defendant-Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Georgia
______________________________
(July 29, 1998)
Before ANDERSON and BIRCH, Circuit Judges, and COHILL*, Senior
District Judge.
BIRCH, Circuit Judge:
Sabrina Barnett appeals the district court’s order denying her
permission to withdraw her consent to a trial before a magistrate
*
Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of
Pennsylvania, sitting by designation.
judge. She further contests the magistrate judge’s exclusion of
fifteen witnesses submitted pursuant to a pretrial order. For the
reasons that follow, we conclude that Barnett did not clearly and
unambiguously consent to trial before a magistrate judge. As a
result, the magistrate judge lacked jurisdiction to preside over this
trial. We therefore remand the case to the district court for further
proceedings consistent with this opinion.1
I. BACKGROUND
On April 6, 1995, Sabrina Barnett filed an employment
discrimination suit against General Electric Capitol Corporation
(“GEEC”). On October 18, 1996, the attorneys representing both
parties attended a pretrial conference before a magistrate judge.
The conference was not memorialized and, as a result, there is no
record of what transpired between the parties; however, it is
undisputed that the parties discussed whether to try the case
1
Consistent with our determination that the magistrate judge exceeded his jurisdiction in
presiding over this trial, our court, similarly, lacks jurisdiction over this appeal. We therefore do
not consider the remaining evidentiary issue raised by Barnett.
2
before a magistrate judge. According to the magistrate judge’s
order describing the conference, Barnett’s counsel, George
Johnson, “advised that he would recommend to his client that she
. . . consent to trial, and that he did not foresee any problems with
that consent.” R3-58 at 1. Although the court proceeded to make
the necessary arrangements for trial before the magistrate judge,
Johnson subsequently notified the court that Barnett refused to
consent to trial before a magistrate judge.
On November 7, 1996, GEEC filed a motion to deny
Barnett’s withdrawal of consent to trial by jury before a magistrate
judge. The district court granted GEEC’s motion after finding that
Barnett had, through her attorney, waived her right to adjudication
before an Article III judge and that any confusion that may have
existed regarding her actual consent was a matter solely between
attorney and client. See R3-59. The parties tried the case before
a magistrate judge over the course of four days in January, 1997.
On January 24, 1997, the jury returned a verdict in favor of GEEC.
3
II. DISCUSSION
Barnett challenges the district court’s order granting GEEC’s
motion to deny Barnett permission to withdraw her consent to try
this case before a magistrate judge; in essence, Barnett contends
that the district court judge compelled her to go to trial before a
magistrate judge without her consent. GEEC responds that the
district court correctly determined that Barnett effectively
consented to trial before a magistrate judge by virtue of the oral
representations of her attorney at the pretrial conference.
Congress has established that magistrate judges may
preside over most trials2 with the consent of the parties. See
28
U.S.C. § 636(c)(1). We previously have held that explicit,
voluntary consent is crucial to this procedure. See Hall v. Sharpe,
812 F.2d 644, 647 (11th Cir. 1987). We have further noted that
consent must be “clear and unambiguous,”
id., and that “if one of
the parties in a civil lawsuit pending before a district court states
2
There are exceptions to this general principle that are neither applicable nor relevant in
this instance.
4
his unwillingness to consent to a trial before a magistrate judge,
the district court cannot designate a magistrate judge to preside
over the trial.” Thomas v. Whitworth,
136 F.3d 756, 758 (11th Cir.
1998) (emphasis in original).
Here, the district court based its ruling on the premise that
Johnson had orally consented to try Barnett’s case before a
magistrate judge and that oral consent by counsel satisfied the
consent requirement of the statute. The district court noted that
“[c]ourts must be able to rely on an attorney as an agent for his or
her client,” R3-59 at 1, and observed that “[a]llowing withdrawal of
consent under the circumstances of this case also would
undermine a Court’s ability to manage its workload and would
unduly delay the proceedings.” Id. at 2. Finally, the district court
found further support for a finding of consent in a letter from
Johnson to the court in which Johnson stated that he had
“informed [the magistrate judge] at the Pre-Trial Conference that
5
we would consent to a jury trial before the Magistrate, however, I
did so without my client’s permission.” R3-59 at 2.
Although we are mindful of the concerns articulated by the
district court with regard to judicial efficiency, we nonetheless
readily conclude that the district court erred in construing the
events that transpired in this instance to be a manifestation of
explicit consent by Barnett to go to trial before a magistrate judge.
First, Johnson’s statement that he “would recommend to his client
that she . . . consent to trial, and that he did not foresee any
problems with that consent,” R3-58 at 1, cannot reasonably be
read to convey unequivocal, unambiguous consent; even to the
extent that Johnson’s oral representations at the pretrial
conference are binding on his client, his statement appears to
evince a desire to consult with his client and, in so doing, to
recommend trial before a magistrate judge. Second, because
there was no record of the pretrial conference, the district court
had no record to review in deciding whether consent was
6
communicated properly here; indeed, we also have no record to
review to ascertain precisely what transpired at the pretrial
conference. The district court thus had before it only a letter by
Johnson communicating through descriptive language (rather
than by direct quotation) what the court later characterized as an
attorney-client mishap. We previously have held, however, that
while consent to referral to a magistrate judge need not be in
writing, it must be “express and on the record,” General Trading v.
Yale Materials Handling Corp.,
119 F.3d 1485, 1495 (11th Cir.
1997) (internal quotation and citation omitted), cert. denied, ___
U.S. ___,
118 S. Ct. 1380,
140 L. Ed. 2d 526 (1998).3 We
conclude that the statement attributed to Johnson by the
magistrate judge was not a manifestation of clear and
3
We acknowledge that Johnson’s after-the-fact letter to the court could be interpreted to
mean that the attorney did in fact consent at the pretrial conference. This is GEEC’s position on
appeal, and based on that position GEEC argues that the appropriate issue for appeal is whether
or not an attorney’s oral consent is binding on the client. However, we conclude that the
attorney’s letter does not constitute the required clear and unambiguous consent. Another
permissible interpretation of the attorney’s letter is that he had told the magistrate judge that his
client would consent in the future. Thus, it cannot be said that the attorney’s letter is clear and
unambiguous. Accordingly, we reject GEEC’s attempt to convert the issue in this case to that of
whether an attorney can consent on behalf of the client.
7
unambiguous consent. Moreover, the lack of any record of the
pretrial conference rendered this case particularly inappropriate
for referral to a magistrate judge over the objection of the
plaintiff.4
Briefly, we note that GEEC also suggests that the district
court’s decision to refer this civil trial to a magistrate judge, if
found to be erroneous, should be deemed harmless error.
GEEC notes that Barnett received a full and fair opportunity to
litigate her claims before a tribunal and can point to no specific
error that rendered her trial tantamount to a miscarriage of
justice. We recently have decided, however, that
it can never be genuinely “harmless” for a
litigant, over his objection, to be compelled
4
It is unclear whether the district court had the benefit of the magistrate judge’s order
describing the pretrial conference prior to ruling on GEEC’s motion; the magistrate judge’s order
and the district court’s order issued on the same day. The answer to this question, however,
makes no difference to our resolution of this case. If the district court did have an opportunity to
review the magistrate judge’s order, we conclude that the statement attributed to Johnson should
have indicated to the district court that Barnett’s consent was not clear and unequivocal.
Assuming that the district court did not have the magistrate judge’s order, and regardless of the
letter from Johnson, the absence of any record apprizing the court of what actually was said
during the pretrial conference should have precluded a finding of unambiguous consent to trial
before a magistrate judge.
8
to try some or all [of] his case before a non-
Article III judicial officer not entitled to
exercise the power of an Article III judge.
....
. . . . The essence of the harm in this
situation is the fact that the lawsuit was
entertained by a tribunal that, according to
Congress, had no power to entertain the
dispute. . . . [T]he harm to Appellant flows
not from the adequacy or inadequacy . . . of
the magistrate judge’s handling of the . . .
process, but rather from the fact that
Congress did not afford magistrate judges
the power to preside over any aspect of the
trial of a civil lawsuit without the express
consent of the parties . . . .
Thomas,
136 F.3d at 761-762 (emphasis in original). Based on
our circuit precedent, GEEC’s argument that any potential error
that occurred in this case should be deemed harmless is
unavailing.
III. CONCLUSION
Barnett challenges the district court’s order granting
GEEC’s motion to deny Barnett permission to withdraw her
9
consent to go to trial before a magistrate judge. We conclude
that statements by Barnett’s attorney apparently expressed
during the pretrial conference did not manifest the clear and
unambiguous consent that the statute requires for referral of a
civil trial to a magistrate judge. Furthermore, the absence of
any record or official transcript of the pretrial conference
renders a finding of express consent by the parties to trial
before a magistrate judge inappropriate. The error engendered
by improper reference to a magistrate judge in this case,
moreover, cannot be deemed harmless in nature. The district
court erred in finding that Barnett had consented explicitly to
trial before a magistrate judge; therefore, the magistrate judge
was without jurisdiction to preside over this trial. Accordingly,
the judgment is VACATED and the case is REMANDED for
further proceedings consistent with this opinion.
10
