Robert Ito Farm, Inc. v. County of Maui , 842 F.3d 681 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT ITO FARM, INC.; HAWAII No. 15-15246
FARM BUREAU FEDERATION, MAUI
COUNTY, “Maui Farm Bureau”; D.C. No.
MOLOKAI CHAMBER OF COMMERCE; 1:14-cv-00511-
AGRIGENETICS, INC., DBA Mycogen SOM-BMK
Seeds; MONSANTO COMPANY;
CONCERNED CITIZENS OF MOLOKAI
AND MAUI; FRIENDLY ISLE AUTO OPINION
PARTS & SUPPLIES, INC.; NEW
HORIZON ENTERPRISES, INC., DBA
Makoa Trucking and Services;
HIKIOLA COOPERATIVE,
Plaintiffs-Appellees,
v.
COUNTY OF MAUI,
Defendant,
ALIKA ATAY; LORRIN PANG; MARK
SHEEHAN; BONNIE MARSH; LEI’OHU
RYDER; SHAKA MOVEMENT,
Intervenor-Defendants,
v.
2 ROBERT ITO FARM V. MOMS ON A MISSION HUI
THE MOMS ON A MISSION (MOM)
HUI; MOLOKAI MAHIAI; GERRY
ROSS; CENTER FOR FOOD SAFETY,
Proposed Intervenor-Defendants,
Movants-Appellants.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief Judge, Presiding
Argued and Submitted June 15, 2016
Honolulu, Hawaii
Filed November 18, 2016
Before: Sidney R. Thomas, Chief Judge, and Consuelo M.
Callahan and Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia
ROBERT ITO FARM V. MOMS ON A MISSION HUI 3
SUMMARY*
Civil Procedure
The panel affirmed the district court’s determination that
it lacked jurisdiction over an appeal from a magistrate judge’s
order denying intervention.
The panel held that prospective intervenors are not
“parties” for purposes of 28 U.S.C. § 636(c)(1), and a
magistrate judge who has the consent of the named parties to
the suit may rule on a prospective intervenor’s motion to
intervene without the prospective intervenor’s consent. The
panel held that in this case, because the magistrate judge had
the consent of the parties and did not need the consent of the
proposed intervenor, the magistrate judge had jurisdiction to
rule on the motion to intervene and the magistrate judge’s
order denying intervention became immediately appealable
to the Ninth Circuit, not to the district court.
COUNSEL
Summer Kupau-Odo (argued), and Paul H. Achitoff,
Earthjustice, Honolulu, Hawaii; Sylvia Shih-Yau Wu and
George A. Kimbrell, Center for Food Safety, San Francisco,
California; for Movants-Appellants.
Richard P. Bress (argued), Angela Walker, Andrew D. Prins,
and Philip J. Perry, Latham & Watkins LLP, Washington,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 ROBERT ITO FARM V. MOMS ON A MISSION HUI
D.C.; Nickolas A. Kacprowski and Paul D. Alston, Alston
Hunt Floyd & Ing, Honolulu, Hawaii; Christopher Landau,
Kirkland & Ellis LLP, Washington, D.C.; Margery S.
Bronster and Rex Y. Fujichaku, Bronster Fujichaku Robbins,
Honolulu, Hawaii; for Plaintiffs-Appellees.
OPINION
MURGUIA, Circuit Judge:
A magistrate judge may exercise jurisdiction over a civil
action “[u]pon the consent of the parties.” 28 U.S.C.
§ 636(c)(1). This case requires us to decide whether the
consent of a prospective intervenor—that is, one who wants
to intervene but has not yet been allowed to do so—is
necessary for a magistrate judge to rule on a motion to
intervene. We hold that prospective intervenors are not
“parties” for purposes of § 636(c)(1), and a magistrate judge
who has the consent of the named parties to the suit may rule
on a prospective intervenor’s motion to intervene without the
prospective intervenor’s consent.
I.
In November 2014, the voters of the County of Maui
(“the County”) approved a county ordinance (“the
Ordinance”) via ballot initiative prohibiting the growth,
testing, and cultivation of genetically engineered crops until
the County conducted an environmental and health impact
study. A group of industrial agriculture plaintiffs (Appellees
in this appeal) sued the County in federal court to enjoin and
invalidate the Ordinance. The parties consented to have the
case proceed before a magistrate judge.
ROBERT ITO FARM V. MOMS ON A MISSION HUI 5
Two public-interest citizens’ groups, Shaka and MOM
Hui, filed motions to intervene on the same day. In a single
order, the magistrate judge granted Shaka’s motion to
intervene but denied MOM Hui’s. The magistrate judge
found that the motions to intervene were timely, that both
movants had significantly protectable interests, that the
invalidation of the Ordinance would impair those interests,
and that the County would not adequately represent their
interests because the County had opposed the ordinance and
its interests were broader than those of Shaka or MOM Hui.1
The magistrate judge then allowed the Shaka movants to
intervene based on the group’s role in the initiative that
enacted the Ordinance. In the same order, the magistrate
judge denied MOM Hui’s motion to intervene, finding that
Shaka would adequately represent MOM Hui’s interests. In
a separate order, the magistrate judge directed the clerk to
reassign the case to a district judge in light of the fact that
Shaka, which was now a party to the action, had not
consented to proceeding before the magistrate judge.
1
A party seeking to intervene as of right must meet four
requirements:
(1) the applicant must timely move to intervene; (2) the
applicant must have a significantly protectable interest
relating to the property or transaction that is the subject
of the action; (3) the applicant must be situated such
that the disposition of the action may impair or impede
the party’s ability to protect that interest; and (4) the
applicant’s interest must not be adequately represented
by existing parties.
Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (citing Fed. R.
Civ. P. 24(a)(2)).
6 ROBERT ITO FARM V. MOMS ON A MISSION HUI
MOM Hui “appealed” the magistrate judge’s denial of its
motion to intervene to the district court. After ordering
supplemental briefing on the issue of consent, the district
court held that the magistrate judge had jurisdiction to rule on
MOM Hui’s motion to intervene because the magistrate judge
was acting with the consent of the parties to the suit. The
district court further held that any appeal from the magistrate
judge’s order needed to be taken to the Ninth Circuit because
the magistrate judge, having obtained the consent of the
parties, had authority to enter a final decision under 28 U.S.C.
§ 636(c)(1). The district court therefore concluded that it
lacked jurisdiction to hear MOM Hui’s appeal.
MOM Hui timely appealed the district court’s
jurisdictional decision to this court. But MOM Hui does not
appeal from the order of the magistrate judge denying its
motion to intervene.
II.
The magistrate judge had the consent of the named parties
to the suit. The issue in this appeal is whether MOM Hui’s
consent as a prospective intervenor was necessary for the
magistrate judge to exercise jurisdiction over its motion to
intervene under 28 U.S.C. § 636(c)(1). We review this purely
legal question de novo. See United States v. Lang, 149 F.3d
1044, 1046 (9th Cir.), as amended, 157 F.3d 1161 (9th Cir.
1998).
If the magistrate judge had jurisdiction under § 636(c)(1),
the magistrate judge’s ruling would have the same effect as
if it had been made by a district judge. See Pacemaker
Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d
537, 540 (9th Cir. 1984) (en banc). As such, the magistrate
ROBERT ITO FARM V. MOMS ON A MISSION HUI 7
judge’s intervention order would have been immediately
appealable as a final decision. See Donnelly v. Glickman,
159 F.3d 405, 409 (9th Cir. 1998). An appeal of that order
would need to be taken to this court, not the district court.
See 28 U.S.C. § 1291.2
III.
The Federal Magistrate Act of 1979 “authorizes
magistrates, when specially designated by the district court,
to exercise jurisdiction over civil matters and enter a final
judgment in the district court in civil cases, provided the
parties consent to the reference.” Pacemaker, 725 F.2d at
540. As relevant here, the Act states that:
Upon 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
2
The fact that an order becomes immediately appealable does not,
absent the filing of a notice of appeal, necessarily divest the district court
of jurisdiction to entertain a motion for reconsideration. Cf. Mayweathers
v. Newland, 258 F.3d 930, 935 (9th Cir. 2001) (“When a notice of appeal
is filed, jurisdiction over matters being appealed normally transfers from
the district court to the appeals court”). Here, because the case was
transferred from the magistrate judge to the district court once Shaka
became a party, MOM Hui could have moved for the district court to
reconsider the magistrate judge’s intervention order, just as it could if the
ruling had been made by a different district judge. See Dreith v. Nu
Image, Inc., 648 F.3d 779, 787–88 (9th Cir. 2011). But MOM Hui did not
do so, and the district court did not abuse its discretion in declining to sua
sponte construe MOM Hui’s challenge of the magistrate judge’s order as
a motion for reconsideration. See In re Jones, 670 F.3d 265, 267 (D.C.
Cir. 2012).
8 ROBERT ITO FARM V. MOMS ON A MISSION HUI
designated to exercise such jurisdiction by the
district court or courts he serves.
28 U.S.C. § 636(c)(1).
Under § 636(c)(1), a magistrate judge acting with the
consent of the parties in a civil suit effectively presides as a
district judge over the action. But “[w]here the magistrate
judge has not received the full consent of the parties, he has
no authority to enter judgment in the case, and any purported
judgment is a nullity.” Kofoed v. Int’l Bhd. of Elec. Workers,
Local 48, 237 F.3d 1001, 1004 (9th Cir. 2001). Consent of
the parties is a predicate for magistrate judge jurisdiction
because, subject to some exceptions, a federal litigant has a
personal right to have his case heard by an Article III judge.
Dixon v. Ylst, 990 F.2d 478, 479 (9th Cir. 1993). As a result,
“a magistrate judge may establish jurisdiction over an action
only if the parties have consented to it.” United States v. Real
Property, 135 F.3d 1312, 1315 (9th Cir. 1998). The clerk
must tell the parties in writing of their opportunity to consent,
and the consent must also be explicit and in writing. Id.; see
also Fed. R. Civ. P. 73(b); D. Haw. LR 73.2(a).
It is clear that the named parties to a federal suit must
consent for a magistrate judge to have jurisdiction over the
action. This case presents the novel question of whether a
prospective intervenor must also consent for the magistrate
judge to rule on the motion to intervene. The two circuit
courts of appeal to have considered this question are split on
the answer.
The Second Circuit has held that a magistrate judge lacks
jurisdiction to decide a motion to intervene without the
consent of the prospective intervenor. In New York Chinese
ROBERT ITO FARM V. MOMS ON A MISSION HUI 9
TV Programs, Inc. v. U.E. Enterprises, Inc., the Second
Circuit held that, without the consent of prospective
intervenors, a magistrate judge’s denial of their motion to
intervene had “the effect only of a report and
recommendation to the district judge, who upon the filing of
objections must review de novo the recommendation.”
996 F.2d 21, 25 (2d Cir. 1993) (citing Fed. R. Civ. P. 72(b));
see also 28 U.S.C. § 636(b)(1)(B). The Second Circuit relied
on authority providing that “voluntary consent of all
parties—even those entering [the] case at [a] later
stage—may be required to invoke [the] jurisdictional
provisions of § 636(c).” 996 F.2d at 24 (citing 12 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 3077.2-3 (Supp. 1987)). Because “the consent of each
party is essential to the validity of the statutory system that
allows a magistrate judge to make binding adjudications,” the
court concluded that, without the prospective intervenors’
express consent, the “magistrate judge was not authorized to
enter a final order denying intervention.” Id. at 24–25.
The Seventh Circuit reached the opposite result. In
People Who Care v. Rockford Board of Education, School
District No. 205, the court held that “the power to rule on
motions to intervene is a necessary and proper incident of the
magistrate judge’s power to decide the underlying case.”
171 F.3d 1083, 1089 (7th Cir. 1999). The court found this
result to be consistent with § 636(c) because the statute
“requires only the consent of ‘parties’ to the magistrate
judge’s entering dispositive orders.” Id. And, as the court
determined, “an applicant for intervention is not a party—he
wants to become a party. He is a litigant, and if there were a
good reason to classify him as a party the language of the
statute would certainly bend far enough to allow this.” Id.
(citations omitted).
10 ROBERT ITO FARM V. MOMS ON A MISSION HUI
We agree with the Seventh Circuit that a prospective
intervenor is not a “party” as that term is used in § 636(c)(1).
The Supreme Court has held that a prospective intervenor is
not a “party” as that term is used in federal law, and he does
not become a party until he actually intervenes in the suit.
United States ex rel. Eisenstein v. City of New York, 556 U.S.
928, 933 (2009). “[W]hen the term to intervene is used in
reference to legal proceedings, it covers the right of one to
interpose in, or become a party to, a proceeding already
instituted.” Id. (quoting Rocca v. Thompson, 223 U.S. 317,
330 (1912)). Further, a prospective intervenor does not
become a party to the suit unless and until he is allowed to
intervene. If the actual parties to the suit have given consent,
the consent of prospective intervenors is not necessary for the
magistrate judge to exercise jurisdiction over the action. See
Real Property, 135 F.3d at 1317 (holding that a putative
claimant’s failure to become a party to an in rem action
“made it unnecessary to obtain his consent to the magistrate
judge’s jurisdiction”). While later-added parties must give
consent for a magistrate judge to exercise jurisdiction,
Jaliwala v. United States, 945 F.2d 221, 223–24 (7th Cir.
1991), prospective parties do not have the same right.
MOM Hui argues that “[n]othing in 28 U.S.C. § 636(c)
suggests that the term ‘parties’ is limited to existing parties to
a lawsuit” and that “[l]egally, the term ‘party’ encompasses
a wide range of meanings, including, primarily, ‘[o]ne who
takes part in a transaction,’ such as a party to a contract.”
(quoting Black’s Law Dictionary 1144 (7th ed. 1999)). But
that argument is foreclosed by Eisenstein’s holding that a
“party,” as that term is used in federal law, is “[o]ne by or
against whom a lawsuit is brought.” 556 U.S. at 933 (quoting
Black’s Law Dictionary 1154 (8th ed. 2004)). That a would-
be intervenor may stand to be bound by a judgment or
ROBERT ITO FARM V. MOMS ON A MISSION HUI 11
otherwise adversely affected by it does not make him a party
to the suit. See id. at 934 (“[T]he United States’ status as a
‘real party in interest’ in a qui tam action does not
automatically convert it into a ‘party.’”).
MOM Hui also argues that “parties,” as used in § 636(c),
must mean more than actual parties to the suit, or else it
would have no way of obtaining review of the magistrate
judge’s denial of their motion to intervene. It points to
§ 636(c)(3), which provides that, “[u]pon entry of judgment
in any case referred under paragraph (1) of this subsection
[allowing magistrate judges to conduct proceedings upon
consent of the parties], an aggrieved party may appeal
directly to the appropriate United States court of appeals from
the judgment of the magistrate judge in the same manner as
an appeal from any other judgment of a district court.”
(emphasis added). MOM Hui contends that if it is not a
“party,” then it cannot appeal from the judgment of the
magistrate judge under § 636(c)(3).
MOM Hui does have a right to appeal the magistrate
judge’s order denying its motion to intervene to this court, but
this right is not based on its status as a party to the litigation.
Rather, the denial of a motion to intervene is appealable
under the collateral order doctrine. Eisenstein, 556 U.S. at
931 n.2. “In such a case, the [would-be intervenor] is a party
for purposes of appealing the specific order at issue even
though it is not a party for purposes of the final judgment and
Federal Rule of Appellate Procedure 4(a)(1)(B).” Id.; see
also Stringfellow v. Concerned Neighbors in Action, 480 U.S.
370, 375 (1987) (noting that the collateral order doctrine
“recognizes that a limited class of prejudgment orders is
sufficiently important and sufficiently separate from the
underlying dispute that immediate appeal should be
12 ROBERT ITO FARM V. MOMS ON A MISSION HUI
available,” but holding that the doctrine did not apply to a
party that had been granted permissive intervention but
denied intervention as of right); Nat’l Ass’n of Chain Drug
Stores v. New England Carpenters Health Benefits Fund,
582 F.3d 30, 40 (1st Cir. 2009) (noting that would-be
intervenors are “entitled to appeal the denials of intervention
at once under the collateral order doctrine”).
Section 636(c)(3) gives parties to a suit proceeding before
a magistrate judge the right to appeal the magistrate judge’s
final judgment to the court of appeals. As a non-party,
would-be intervenor, MOM Hui could not appeal the final
judgment of the magistrate judge, i.e., the ruling as to whether
the Ordinance is preempted. See 28 U.S.C. § 636(c)(3). But
MOM Hui could nonetheless appeal the denial of its motion
to intervene under the collateral order doctrine. Eisenstein,
556 U.S. at 931 n.2. “Party” therefore means the same thing
in § 636(c)(3) as “parties” does in § 636(c)(1): “[o]ne by or
against whom a lawsuit is brought.” Id. at 933 (quoting
Black’s Law Dictionary, supra at 1154).
Because the magistrate judge had the consent of the
parties and did not need the consent of MOM Hui, the
magistrate judge had jurisdiction to rule on MOM Hui’s
motion to intervene. Effectively presiding as a district judge
over the suit, the magistrate judge’s intervention order
became immediately appealable to this court. See Citizens
for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893,
896 (9th Cir. 2011) (citing 28 U.S.C. § 1291); Perles v. Kagy,
394 F. Supp. 2d 68, 71–73 (D.D.C. 2005). Because MOM
Hui did not appeal that order, we express no view on whether
ROBERT ITO FARM V. MOMS ON A MISSION HUI 13
MOM Hui should have been allowed to intervene. But we
agree with the district court that MOM Hui’s appeal should
have been made to this court and not the district court.
AFFIRMED.