Victor Washington v. Kilolo Kijakazi ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR WASHINGTON, No. 22-35320
Plaintiff-Appellant, D.C. No. 2:21-
v. cv-01195-BAT
KILOLO KIJAKAZI, Acting
Commissioner of Social Security, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding
Submitted May 8, 2023 *
Seattle, Washington
Filed July 3, 2023
Before: William A. Fletcher, Richard R. Clifton, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Clifton;
Concurrence by Judge W. Fletcher
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 WASHINGTON V. KIJAKAZI
SUMMARY **
Magistrate Judges / Social Security / Credit-as-True
Rule
The panel affirmed the district court’s judgment
affirming the decision of an administrative law judge
(“ALJ”) denying Victor Washington’s application for
disability benefits under the Social Security Act.
As a threshold matter, the panel considered whether the
magistrate judge had authority to exercise the full civil
jurisdiction of the district court over Washington’s
claim. There is no doubt that the district court had
jurisdiction over the case, but Washington challenged
whether he had given the consent that was required for a
magistrate judge to exercise that jurisdiction. The panel held
that it had jurisdiction to review the antecedent question of
whether the magistrate judge validly entered judgment on
behalf of the district court.
The Federal Magistrate Act governs the jurisdiction and
authority of federal magistrate judges. General Order
(“G.O.”) 05-17 of the District Court for the Western District
of Washington establishes procedures to solicit consent by
those parties in those cases to the assignments to magistrate
judges. If either party timely declines consent, the case is
reassigned to a district court judge. After Washington filed
a complaint challenging the ALJ’s decision in the Western
District of Washington, the district court assigned the case
Magistrate Judge Brian Tsuchida, who sent the parties a
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WASHINGTON V. KIJAKAZI 3
consent form. Neither party responded to the form by
declining consent to the assignment by the stated date.
The panel held that the declination-of-consent form used
in this case fulfilled the requirements of implied consent set
forth in Roell v. Withrow, 538 U.S. 580 (2003), and Wellness
International Network, Ltd. v. Sharif, 575 U.S. 665(2015). The form apprised Washington of the consequences
of consent, the voluntary nature of consent, and the
availability of a district judge upon declining consent. The
form’s language was substantively similar to consent forms
in other cases where this court held that a pro se plaintiff
impliedly consented to magistrate judge
jurisdiction. Washington also voluntarily proceeded with
the litigation before the magistrate judge. It was only after
the district court, by the magistrate judge, rendered a
decision that Washington found unfavorable that he objected
to the magistrate judge decision as a final order. Washington
did not dispute that he received the notice and declination-
of-consent form.
The panel rejected Washington’s contention that, as a
pro se litigant, he believed he was consenting to the
magistrate judge’s issuance of a report and recommendation,
not a final judgment. The question here was whether
Washington was sufficiently informed of his ability to
decline assignment of his case to a magistrate judge for all
purposes. By the time of his appeal, two separate orders, one
by Chief Judge Martinez and the other by Magistrate Judge
Tsuchida, had already discussed and rejected his objection
to the exercise of the district court’s authority by the
magistrate judge. The panel held that Washington was fully
informed of the district court’s conclusion that he had
knowingly and voluntarily consented to the assignment to
the magistrate judge. The panel recognized that Washington
4 WASHINGTON V. KIJAKAZI
did not have the benefit of representation by counsel, but this
court has never held that pro se litigants were incapable of
knowingly or voluntarily consenting to magistrate judge
jurisdiction.
To the extent that Washington’s post-objection motions
were construed as a motion to withdraw consent, the panel
held that argument also failed. Washington was unable to
show good cause or extraordinary circumstances to
withdraw consent. The panel affirmed the district court’s
conclusion that Washington consented to magistrate judge
jurisdiction.
Magistrate judge jurisdiction also requires that a district
court specially designate a magistrate judge’s authority to
enter a final order. The panel rejected Washington’s
argument that the general orders of the Western District of
Washington do not authorize the automatic assignment of
magistrate judges for pro se plaintiffs in civil matters or
social security cases. G.O. 05-17 approved the procedure
outlined in the declination-of-consent form and applied it to
all civil cases filed after June 1, 2017, that were randomly
assigned to a U.S Magistrate Judge. The panel held that
neither the general orders nor local rules contained a
carveout for pro se plaintiffs. Accordingly, the district court
specially designated the magistrate judge in this case with
authority to enter a final order.
As to the merits of the appeal, Washington contended
that the ALJ failed to properly consider his symptom
testimony, his treating physician’s assessment concerning
his risk of heart attack, and other evidence in the record. He
requested under the “credit-as-true” rule that the court hold
this evidence to be credible and remand to the Commissioner
with instructions for an immediate award of benefits. Under
WASHINGTON V. KIJAKAZI 5
the credit-as-true analysis, the court determines whether the
record has been fully developed, whether there are
outstanding issues that must be resolved before a disability
determination can be made, and whether further
administrative proceedings would be useful. Because the
ALJ found no severe impairments prior to the date last
insured, the ALJ did not proceed past step two in
Washington’s disability analysis. Step two is merely a de
minimus screening device to dispose of groundless
claims. The panel held that regardless of whether the
evidence at issue is credited, outstanding issues must be
resolved before a disability determination can be made. In
addition, the district court properly identified contradictory
evidence in the record appropriate for remand. The panel
concluded that the district court did not abuse its discretion
in remanding to the Commissioner of Social Security to
resolve the contested issues.
Concurring, Judge W. Fletcher wrote separately to
encourage the district court, and other district courts in the
same position, to revise consent forms for magistrate judge
jurisdiction. The consent form in this case was easily
understood by lawyers, but language could be added to the
form to make its meaning crystal-clear to pro se litigants like
Washington.
6 WASHINGTON V. KIJAKAZI
COUNSEL
Victor Washington, Shoreline, Washington, pro se Plaintiff-
Appellant.
Sarah E. Moum, Special Assistant United States Attorney;
Office of the General Counsel, Social Security
Administration; Baltimore, Maryland; Matthew W. Pile,
Associate General Counsel; Office of Program Litigation;
Seattle, Washington; Kerry Jane Keefe, Assistant United
States Attorney; Nicholas W. Brown, United States
Attorney; Office of the United States Attorney; Seattle,
Washington; Joshua M. Salzman, Attorney; United States
Department of Justice; Washington, D.C.; for Defendant-
Appellee.
Robin Wechkin, Sidley Austin LLP, Issaquah, Washington;
David R. Carpenter, Sidley Austin LLP, Los Angeles,
California; for Amicus Curiae the Federal Magistrate Judges
Association.
OPINION
CLIFTON, Circuit Judge:
Victor Washington filed in the U.S. District Court for the
Western District of Washington a pro se action to challenge
the denial of his claim for disability benefits by the Social
Security Administration. A magistrate judge of that court,
acting with the full civil authority of that court, reversed and
remanded the matter to the agency for rehearing after the
government conceded that there was an error in the agency’s
adjudication.
WASHINGTON V. KIJAKAZI 7
Washington, still appearing pro se, appeals that decision.
He presents two arguments. First, he contests the magistrate
judge’s authority or jurisdiction to issue a final judgment,
arguing that he did not consent to magistrate judge
jurisdiction. The primary question before us is whether
consent to a magistrate judge’s authority to exercise the full
civil authority of the district court may be inferred from the
failure of the litigant to return a declination-of-consent form
issued under the general orders and local rules of the
Western District of Washington. We conclude that
Washington knowingly and voluntarily consented to
magistrate judge jurisdiction by failing to return the form
that notified him of his rights and by thereafter proceeding
with the litigation before the magistrate judge.
Washington’s second argument is that this case should
not be remanded to the agency for further proceedings but
that, instead, he should be granted an immediate award of
benefits under a credit-as-true analysis. We disagree,
concluding that questions remain to be answered before
benefits could properly be awarded.
We thus affirm the judgment of the district court.
I. Background
Washington filed a claim for disability benefits under
Title II of the Social Security Act based on symptoms from
various ailments, including sarcoidosis, depression, and
anxiety. In May 2021, the Administrative Law Judge
(“ALJ”) denied Washington’s application.
In September 2021, Washington filed a complaint
challenging the ALJ’s decision in the Western District of
Washington. The district court assigned the case to
Magistrate Judge Brian A. Tsuchida, a full-time magistrate
8 WASHINGTON V. KIJAKAZI
judge for that district, for all purposes and sent the parties a
form titled “NOTICE OF ASSIGNMENT TO A U.S.
MAGISTRATE JUDGE AND DECLINATION OF
CONSENT FORM.” The first page of the form stated:
This matter is assigned to United States
Magistrate Judge Brian A. Tsuchida for all
purposes, including trial, final entry of
judgment, and direct review by the Ninth
Circuit Court of Appeals. See Second
Amended General Order 02–19.
Consent to a Magistrate Judge is voluntary. A
party may decline consent by signing and
emailing this form [to the court]. The form
must be received by the court no later than
October 1, 2021. Please do not file the form.
Each party will be deemed to have knowingly
and voluntarily consented to proceed before
Magistrate Judge Tsuchida if this form is not
returned by October 1, 2021. The identity of
the parties consenting or declining consent
will not be communicated to any judge.
The second page of the form contained a box titled “I decline
consent and request the case be assigned to a District Judge.”
Below the box contained signature lines for the
“Attorney/Party’s Signature,” “Party Represented,” and
“Date Signed.”
Neither party responded to the form by declining consent
to the assignment by the stated date. The district court
entered a docket entry confirming that the parties had
consented to proceed before Magistrate Judge Tsuchida.
WASHINGTON V. KIJAKAZI 9
Washington then filed his opening brief in district court.
At that point, the Commissioner conceded that the ALJ had
erred and asked the court to remand Washington’s case to
the agency for further administrative proceedings.
Washington requested instead that he be granted an
immediate award of benefits. Five days after Washington
filed his reply brief, Magistrate Judge Tsuchida ordered
reversal of the ALJ’s decision and remand of the matter to
the agency for further administrative proceedings.
Washington promptly filed a motion for clarification.
He contended that “he may have unknowingly waived a right
to have a [d]istrict court judge review” his objection to the
magistrate judge’s ruling. He stated that he expected the
magistrate judge to issue a report and recommendation, not
a final judgment. Magistrate Judge Tsuchida denied his
motion on grounds that Washington consented to a
magistrate judge “to issue a final order and judgment.”
Washington also filed an objection to jurisdiction, later
amended, arguing that the declination-of-consent procedure
used in this case was improper. District Judge Ricardo S.
Martinez, then-chief judge of the district, reviewed the
underlying order, held that the magistrate judge had
jurisdiction over the case, and independently affirmed the
decision on the merits. In that order, Chief Judge Martinez
concluded that Washington “consented to a magistrate judge
according to [the procedures and general orders of the
district] and certainly did not decline to consent in a timely
fashion.” Chief Judge Martinez further found “that
[Washington] knew he consented, and only took issue with
this consent after the presiding judge issued what
[Washington] has determined to be an unfavorable ruling.”
10 WASHINGTON V. KIJAKAZI
II. Discussion
A. This Court’s Jurisdiction
As a threshold matter, we consider whether the
magistrate judge had authority to exercise the full civil
jurisdiction of the district court over Washington’s claim.
There is no doubt that the district court had jurisdiction over
the case, but Washington challenges whether he had given
the consent that is required for a magistrate judge to exercise
that jurisdiction. Such a challenge is often described in
terms of “magistrate judge jurisdiction.”
Although there is no question that the district court had
jurisdiction, a challenge to the magistrate judge’s authority
raises a question regarding the jurisdiction of this court over
this appeal. We have jurisdiction over “appeals from all
final decisions of the district courts of the United States.” 28
U.S.C. § 1291. Where a magistrate judge enters a final order
on behalf of the district court, “our jurisdiction depends on
the magistrate judge’s lawful exercise of jurisdiction.”
Ashker v. Newsom, 968 F.3d 975, 980 (9th Cir. 2020)
(citation and internal quotation marks omitted). If it is
concluded that the magistrate judge lacked authority to enter
a final judgment in a given case, the jurisdiction of the court
of appeals is undermined, because there is no final decision
for us to review.
Nonetheless, we have authority “to review the
antecedent question of whether the magistrate judge validly
entered judgment on behalf of the district court.” Allen v.
Meyer, 755 F.3d 866, 867 (9th Cir. 2014). We thus start with
the question of magistrate judge jurisdiction in this case
because it controls this court’s jurisdiction over the appeal,
including the challenge raised by Washington to the merits
decision to reverse and remand the ALJ’s decision rather
WASHINGTON V. KIJAKAZI 11
than to order the award of benefits. We review the question
of magistrate judge jurisdiction de novo. Wilhelm v.
Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012).
B. The Magistrate Judge’s Jurisdiction or Authority
The Federal Magistrate Act “governs the jurisdiction and
authority of federal magistrate judges.” Parsons v. Ryan,
912 F.3d 486, 495 (9th Cir. 2018); see 28 U.S.C. §§ 631–39.
Pursuant to the Act, a magistrate judge “may conduct any or
all proceedings in a jury or nonjury civil matter and order the
entry of judgment in the case” if (1) voluntary consent is
obtained from all parties and (2) the magistrate judge is
specially designated by the district court. See Roell v.
Withrow, 538 U.S. 580, 585 (2003) (quoting 28 U.S.C.
§ 636(c)(1)); see also Fed. R. Civ. P. 73(a) (“[A] magistrate
judge may, if all parties consent, conduct a civil action or
proceeding, including a jury or nonjury trial.”).
Jurisdiction under § 636(c) is distinct from that under
§ 636(b), which governs referral jurisdiction and sets out
procedures through which magistrate judges consider non-
dispositive pretrial matters and provide reports and
recommendations on dispositive pretrial matters. See 28
U.S.C. § 636(b)(1)(A)–(C). Unlike § 636(b)(1), jurisdiction
under § 636(c)(1) gives the magistrate judge’s ruling “the
same effect as if it had been made by a district judge.”
Robert Ito Farm, Inc. v. County of Maui, 842 F.3d 681, 685
(9th Cir. 2016).
12 WASHINGTON V. KIJAKAZI
1. General Orders and Local Rules
General Order (“G.O.”) 05-17 1 of the District Court for
the Western District of Washington went into effect in June
2017. It provided that some civil cases newly filed in the
court would be directly assigned to magistrate judges, and it
established procedures to solicit consent by the parties in
those cases to the assignments to magistrate judges. The
order notes that its goal is “to increase the percentage of
consent cases.” G.O. 05-17 at 1. It states that magistrate
jurisdiction is voluntary, “all parties are provided with a
consent form” that they may decline, and “each party will be
deemed to have knowingly, and voluntarily, consented to
proceed before the assigned Magistrate Judge” if the
declination-of-consent form is not signed and returned
before the stated date. Id. (bolding omitted). It also states
that, upon a party’s declination of consent, the identity of the
declining party is kept confidential from any judge and
immediate reassignment of the case to a district judge
occurs. Id. 2
1
Available at https://www.wawd.uscourts.gov/sites/wawd/files/06-01-
17GOreConsenttoMagistrateJudges.pdf (last accessed June 26, 2023).
2
G.O. 05-17 was amended in June 2017. Although the order remains
substantively unchanged from the original, Amended G.O. 05-17 notes
that it “supersedes” Local Magistrate Judge Rule 13 and Amended G.O.
01-15 insofar as those authorities “provide[] that failing to return the
form will be deemed as non-consent[.]” See Am. G.O. 05-17 at 2,
available at https://www.wawd.uscourts.gov/sites/wawd/files/06-29-
17AmendedGOreConsenttoMagistrateJudges.pdf (last accessed June 26,
2023).
WASHINGTON V. KIJAKAZI 13
Two other general orders for the district court are
relevant here: Amended G.O. 01-15 3 and Amended G.O. 02-
19. 4 These orders state that the clerk of the court assigns
social security cases to a magistrate judge if the “plaintiff
timely consents, and if the United States does not timely
withdraw consent[.]” See Am. G.O. 01-15 at 2; Am. G.O.
02-19 at 1. As the orders note, the United States had already
given its “general” consent to magistrate judge jurisdiction
in social security cases. See Am. G.O. 01-15 at 2; Am. G.O.
02-19 at 1. If either party timely declines consent, the case
is then reassigned to a district judge. See Am. G.O. 01-15 at
2; Am. G.O. 02-19 at 1–2.
The district court reiterates the same procedure for
magistrate judge jurisdiction in Local Magistrate Judge Rule
(“MJR”) 13. 5 The rule states that 28 U.S.C. § 636(c), G.O.
05-17, and Amended G.O. 01-15 “shall constitute general
notice to all parties in civil cases in [the Western District of
Washington]” concerning magistrate judge jurisdiction. See
Local Rule MJR 13(b). It notes that “[w]hen a case is direct
assigned to a magistrate judge, the clerk of court will provide
the parties with a form to decline [c]onsent via the Court’s
CM/ECF System.” Local Rule MJR 13(c). Like G.O. 05-
3
Available at https://www.wawd.uscourts.gov/sites/wawd/files/01-15-
15AmendedGOinreConsentsandReferralsUSMagistrateJudges.pdf (last
accessed June 26, 2023).
4
Available at
https://www.wawd.uscourts.gov/sites/wawd/files/Amended%20GO%2
002-
19%20in%20re%20Consent%20and%20Referrals%20to%20Magistrat
e%20Judges.pdf (last accessed June 26, 2026).
5
Available at
https://www.wawd.uscourts.gov/sites/wawd/files/WAWDMJRules12.1
.2018.pdf (last accessed June 26, 2023).
14 WASHINGTON V. KIJAKAZI
17, Amended G.O. 1-15, and Amended G.O. 02-19, the rule
specifies that if a party declines consent, “the clerk will
immediately reassign the case to a district judge by random
selection.” Id.
2. Knowing and Voluntary Consent
Consent is the “touchstone of magistrate judge
jurisdiction.” Anderson v. Woodcreek Venture Ltd., 351
F.3d 911, 914 (9th Cir. 2003). It may be express or implied.
See Roell, 538 U.S. at 591 n.8; see also Wilhelm, 680 F.3d at1118–19. For example, a party may expressly consent to
magistrate judge jurisdiction by “selecting the ‘consent’ box
on [a] court-provided form.” Wilhelm, 680 F.3d at 1119; cf.
Anderson, 351 F.3d at 915 (holding that, in general, filing a
“signed form would provide a clear, unambiguous, and
explicit expression of consent”). Alternatively, a party
impliedly consents when it “was made aware of the need for
consent and the right to refuse it, and still voluntarily
appeared to try the case before the” magistrate judge. Roell,
538 U.S. at 590.
In Roell, the Supreme Court held that two defendants
impliedly consented to magistrate judge jurisdiction by
voluntarily participating in the proceedings and voicing “no
objection when, at several points, the [m]agistrate [j]udge
made it clear that she believed they had consented.” Id. at
584. In Wellness International Network, Ltd. v. Sharif, the
Court extended the “implied consent standard articulated in
Roell” to bankruptcy court jurisdiction. 575 U.S. 665, 684–
85 (2015). The Court emphasized that both express and
implied consent must “be knowing and voluntary.” Id. at
685. In so doing, the Court preserved two “pragmatic
virtues” that Roell espoused: “increasing judicial efficiency
and checking gamesmanship.” Id.WASHINGTON V. KIJAKAZI 15
We conclude that the declination-of-consent form used
in this case fulfills the requirements of implied consent set
forth in Roell and Wellness International Network. The form
apprised Washington of the consequences of consent, the
voluntary nature of consent, and the availability of a district
judge upon declining consent. It stated explicitly that
consent was “voluntary. A party may decline consent by
signing and emailing this form.” It stated in an underscored
sentence that “[e]ach party will be deemed to have
knowingly and voluntarily consented to proceed before
Magistrate Judge Tsuchida if this form is not returned by
October 1, 2021.” The right of a party to refuse consent was
made clear, as was the result if the party did not sign and
return the form declining consent. See Roell, 538 U.S. at587 n.5 (“[N]otification of the right to refuse the magistrate
judge is a prerequisite to any inference of consent[.]”). That
the case would be reassigned to a district judge if consent
was declined was also explicitly stated. The box to decline
consent said that in so many words: “I decline consent and
request the case be assigned to a District Judge.”
The form’s language is substantively similar to consent
forms in other cases where we held that a pro se plaintiff
impliedly consented to magistrate judge jurisdiction. See,
e.g., Wilhelm, 680 F.3d at 1117–18. In Wilhelm, a case
involving the process then used in the Eastern District of
California, the parties were provided with a consent form
that stated: “Without the written consent of the parties
presently appearing pursuant to 28 U.S.C. Sec. 636(c), a
magistrate judge cannot conduct all proceedings and enter
judgment in this case[.]” Id. at 1117. The box for
declination of consent contained language very similar to the
language in the form in our case, stating: “The undersigned
declines to consent to the United States Magistrate Judge
16 WASHINGTON V. KIJAKAZI
assigned to this case and requests random assignment to a
United States District Judge.” Id. at 1118.
The consent form in Wilhelm was different in one
substantive respect. It contained two boxes, one for consent
and one for declination of consent, and instructed each party
to select one of the boxes. Id. at 1117–18. We do not,
however, view that difference to be sufficient to undermine
the consent provided here in response to the Western District
of Washington form, which states that (1) consenting to
magistrate judge jurisdiction authorizes the magistrate judge
to enter a final entry of judgment; (2) appearing in front of a
magistrate judge is voluntary and declination is permitted;
and (3) declining consent is concomitant with a request to a
district judge to hear the case. Accordingly, the declination-
of-consent form “advised [Washington] of the need for
consent and his right to refuse it.” Id. at 1120.
Washington also voluntarily proceeded with the
litigation before the magistrate judge. After being put on
notice of the effects of magistrate judge jurisdiction, he did
not sign and return the declination-of-consent form by
October 1, 2021. When the district court docketed that there
was “consent by all parties to proceed before a Magistrate
Judge. Case remains assigned to Hon. Brian A. Tsuchida[,]”
Washington did not object. He instead filed an opening
brief. Subsequently, the Commissioner conceded that the
ALJ committed harmful error, and Washington responded
with his contention that the district court should order an
award of benefits rather than reversing the ALJ decision and
remanding for further proceedings. He did not object to the
assignment to the magistrate judge at that point, either. It
was only after the district court, by the magistrate judge,
rendered a decision that Washington found unfavorable that
he objected to the magistrate judge decision as a final order.
WASHINGTON V. KIJAKAZI 17
Washington does not dispute that he received the notice
and declination-of-consent form. The record indicates he
registered to receive electronic communications from the
district court prior to its confirmation of consent. He thus
“clearly implied [his] consent by [his] decision to appear
before the [m]agistrate [j]udge, without expressing any
reservation, after being notified of [his] right to refuse and
after being told that [the magistrate judge] intended to
exercise case-dispositive authority.” See Roell, 538 U.S. at
586 (internal quotation marks omitted); see also Wilhelm,
680 F.3d at 1120 (“[H]e presented his case to [the magistrate
judge] without objection[.]”). Holding otherwise would
provide Washington “the luxury of waiting for the outcome
before denying the magistrate judge’s authority[,]” which is
exactly the type of gamesmanship the Court warned against.
See Roell, 538 U.S. at 590. 6 As Chief Judge Martinez found:
Washington “knew he consented, and only took issue with
this consent after the presiding judge issued what
[Washington] has determined to be an unfavorable ruling.”
This case is therefore distinguishable from instances in
which we have declined to affirm magistrate judge
jurisdiction based on consent of the parties. For example, in
Anderson, a case involving procedures then used in the
District of Oregon, we held that it could not be concluded
from the existing record that a pro se plaintiff had voluntarily
6
Other circuit courts have also inferred implied consent from the parties’
delayed objection. See, e.g., Stevo v. Frasor, 662 F.3d 880, 885 (7th Cir.
2011) (holding parties impliedly consented to reassignment to a
magistrate judge where no party objected within 30 days after
reassignment); Chambless v. La.-Pac. Corp., 481 F.3d 1345, 1350–51
(11th Cir. 2007) (concluding “eight months of continual participation in
pretrial proceedings justifies the inference of consent” where plaintiff
“consented to the magistrate judge’s jurisdiction over her original case”).
18 WASHINGTON V. KIJAKAZI
consented to magistrate judge jurisdiction after she was
given a notice form that stated: “The above referenced case
has been assigned to the [magistrate judge] for disposition,
to include the conduct of trial and/or entry of final
judgment.” 351 F.3d at 912 (footnote marker omitted). We
remanded the case to the district court to determine whether
the objecting party had voluntarily consented to the
magistrate judge assignment. Id. at 911.
At the bottom of the page, the form used in that case
stated that “parties are strongly encouraged to file a Consent
to Trial and Entry of Final Judgment.” Id. at 912. In
concluding that the record did not establish that the plaintiff
voluntarily consented based on that notice form, we
observed that the form was addressed to “counsel” and not
to the parties, the form was “ambiguous as to whether the
[magistrate judge] assignment is partial,” and the form was
uncertain “on whether full magistrate judge jurisdiction is
contingent upon” voluntary consent by the parties. Id. at
915–16; cf. Wilhelm, 680 F.3d at 1120 n.6 (distinguishing
Anderson because its notice form “failed to alert the parties
of the need to consent, of their right to decline, or of their
right to a district judge”). By contrast, the form used in
Washington’s case was addressed to the parties, explicitly
stated that consent was voluntary, and clearly informed the
parties that they “knowingly and voluntarily” consent to a
magistrate judge’s final entry of judgment if they do not
decline. The option to decline and request reassignment of
the case to a district judge—when combined with a
statement on voluntary consent and citation to Amended
G.O. 02-19—plainly apprises litigants of their right to
appear before a district judge. 7
7
We further held in Anderson that consent was not implied where the
WASHINGTON V. KIJAKAZI 19
Washington argues that, as a pro se litigant, he believed
he was consenting to the magistrate judge’s issuance of a
report and recommendation, not a final judgment. See 28
U.S.C. § 636(b)(1)(B)–(C). In his reply brief to this court,
he argued that he did not “totally grasp” that the objection he
stated in his opening brief to us “was a [j]urisdiction matter”
instead of “a matter of fairness” until after he read the
government’s answering brief.
We appreciate the claim but are not persuaded by the
contention. The term “jurisdiction” confuses lawyers and
courts. As the Supreme Court has famously observed on
multiple occasions, “Jurisdiction . . . is a word of many, too
many, meanings.” See, e.g., Fort Bend County v. Davis, 139
S. Ct. 1843, 1848 (2019) (citation and internal quotation
marks omitted), and cases cited there. The question here is
whether Washington was sufficiently informed of his ability
to decline assignment of his case to a magistrate judge for all
purposes. By the time of the appeal to our court, two
separate orders, one by Chief Judge Martinez and the other
by Magistrate Judge Tsuchida, both described above, had
already discussed and rejected his objection to the exercise
of the district court’s authority by the magistrate judge.
Even if he may not have understood his objection as raising
a question of “jurisdiction,” Washington had been informed
of the district court’s conclusion that he had knowingly and
plaintiff refused magistrate jurisdiction twice and consented only after
the district judge denied her motion to reject magistrate jurisdiction. 351
F.3d at 916–919. Indeed, the plaintiff’s “first post-Notice Form
pleading” was “Plaintiffs Deny Magistrates [sic] Jurisdiction.” Id. at
912–13 (emphasis added). Conversely, Washington did not contest the
district court’s initial finding of consent. Nor did he express “persistent
resistance to the magistrate judge’s jurisdiction” sufficient to show a lack
of implied consent. See id. at 918.
20 WASHINGTON V. KIJAKAZI
voluntarily consented to the assignment to the magistrate
judge. That conclusion was not erroneous.
We recognize that Washington’s status appearing pro se
may be relevant to the question before us. At least one other
circuit court has held that a litigant’s ability to imply consent
is affected by their pro se status. See Yeldon v. Fisher, 710
F.3d 452, 453 (2d Cir. 2013) (per curiam) (vacating
magistrate judge’s decision because of a lack of
jurisdiction). But in Yeldon, the pro se litigant—though he
later appeared in front of the magistrate judge—expressly
declined his consent in writing. Id. The Second Circuit held
that the litigant “may not have appreciated that participating
in proceedings before the Magistrate Judge could impugn the
effectiveness of his written refusal to consent.” Id. Applied
to this case, it might be a more difficult question if
Washington had signed the declination-of-consent form and
then proceeded before the magistrate judge. Yet that is not
what happened here.
We recognize that Washington did not have the benefit
of representation by counsel, but we have never held that pro
se litigants are incapable of knowingly or voluntarily
consenting to magistrate judge jurisdiction. Individuals who
are not lawyers are regularly held to have given effective
consent or agreement in many different circumstances. It is
appropriate to review notices and forms to satisfy ourselves
that they can be understood by a litigant representing
himself, but there are limits to what a court must do to
accommodate a party appearing pro se. See, e.g., Pliler v.
Ford, 542 U.S. 225, 231 (2004) (stating that “[d]istrict
judges have no obligation to act as counsel or paralegal to
pro se litigants”); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.
1995) (noting that although courts “construe pleadings
liberally in their favor, pro se litigants are bound by the rules
WASHINGTON V. KIJAKAZI 21
of procedure”); Carter v. C.I.R., 784 F.2d 1006, 1008–09
(9th Cir. 1986) (collecting cases) (explaining that a pro se
litigant is “expected to abide by the rules of the court in
which he litigates”). We do not doubt that the district court
could have prepared a notice that might have spelled out in
more detail what the form here sought to communicate. We
conclude, nonetheless, that the process used in this case was
sufficient and that the district court’s conclusion that
Washington had knowingly and voluntarily consented was
not erroneous.
To the extent that we construe Washington’s post-
objection motions as a motion to withdraw consent, that
argument fails too. Under § 636(c)(4), the district court
“may, for good cause shown on its own motion, or under
extraordinary circumstances shown by any party, vacate a
reference of a civil matter to a magistrate judge under this
subsection.” We have stated that the “extraordinary
circumstances” standard sets “a high bar that is difficult to
satisfy.” Branch v. Umphenour, 936 F.3d 994, 1004 (9th
Cir. 2019) (citation and internal quotation marks omitted).
In fact, “[n]either mere dissatisfaction with a magistrate
judge’s decision, nor unadorned accusations that such
decisions reflect judicial bias, will suffice.” Id. Washington
is unable to show good cause or extraordinary circumstances
to withdraw consent. As Chief Judge Martinez held below,
“[t]he procedures in this case are identical to all other social
security cases” and do not violate the general orders of the
Western District of Washington. And, as the Supreme Court
observed, “as long as parties are notified of the availability
of a district judge as required by § 636(c)(2) and Rule 73(b),
a litigant’s general appearance before the magistrate judge
will usually indicate the necessary consent.” Roell, 538 U.S.
at 591 n.7. For these reasons, we affirm the conclusion of
22 WASHINGTON V. KIJAKAZI
the district court that Washington consented to magistrate
judge jurisdiction.
3. Specially Designated
Magistrate judge jurisdiction requires more than consent.
A district court “must also specially designate a magistrate
judge’s authority to enter a final order.” Ashker, 968 F.3d at
982. Washington argues that the general orders of the
Western District of Washington do not authorize “automatic
assignment of magistrate [judges] for [p]ro se [plaintiffs] in
civil matters” or social security cases. We disagree.
As previously discussed, G.O. 05-17 approved the
procedure outlined in the declination-of-consent form and
applied it to “all civil cases filed after June 1, 2017, that have
been randomly assigned to a U.S. Magistrate Judge.” See
G.O. 05-17 at 2. This is supported by Amended G.O. 02-19,
Amended G.O. 01-15, and Local Rule MJR 13. Amended
G.O. 02-19 states that the clerk for the district court “shall
randomly assign to a Magistrate Judge, upon filing, cases in
which plaintiff seeks review, under 42 U.S.C. §405(g), of the
decision of the Commissioner of Social Security.” See Am.
G.O. 02-19 at 1. Amended G.O. 01-15 and Local Rule MJR
13 contain comparable language. See Am. G.O. 01-15 at 2
(replacing “shall” with “may”); Local Rule MJR 13(c) (“The
[district court] direct assigns a percentage of all civil cases
to a magistrate judge.”). Neither the general orders nor local
rules contain a carveout for pro se plaintiffs. Thus, the
district court “specially designate[d]” the magistrate judge in
this case with authority to enter a final order. See Ashker,
968 F.3d at 982.
WASHINGTON V. KIJAKAZI 23
C. Credit-as-True Rule
Moving to the merits of his appeal, Washington contends
that the ALJ failed to properly consider his symptom
testimony, his treating physician’s assessment concerning
his risk for heart attack, and other evidence in the record. He
requests under the “credit-as-true” rule that we hold this
evidence to be credible and remand to the Commissioner
with instructions for an immediate award of benefits.
We review the district court’s decision to remand “for
further proceedings or for an immediate payment of
benefits . . . for abuse of discretion[.]” Miskey v. Kijakazi,
33 F.4th 565, 570 (9th Cir. 2022) (citation and internal
quotation marks omitted). We find an abuse of discretion
only when we are “convinced firmly that the reviewed
decision lies beyond the pale of reasonable justification
under the circumstances.” Id. (citation and internal
quotation marks omitted).
The district court concluded:
In sum, the evidence in this case does not
conclusively establish Plaintiff is disabled
under the Social Security disability
regulations. Rather the evidence must still be
weighed and evaluated properly. There are
conflicts that exist in the evidence that only
the ALJ may resolve. Remand for further
proceedings is thus not only necessary but
appropriate and [this court] therefore orders
this matter is remanded for further
administrative proceedings.
24 WASHINGTON V. KIJAKAZI
The credit-as-true rule has three steps. First, we ask
whether the “ALJ has failed to provide legally sufficient
reasons for rejecting evidence, whether claimant testimony
or medical opinion.” Treichler v. Comm’r of Soc. Sec.
Admin., 775 F.3d 1090, 1100–01 (9th Cir. 2014) (citation
and internal quotation marks omitted). Second, we
determine “whether the record has been fully developed,
whether there are outstanding issues that must be resolved
before a determination of disability can be made, and
whether further administrative proceedings would be
useful.” Id. at 1101 (citations and internal quotation marks
omitted). And third, if “no outstanding issues remain and
further proceedings would not be useful,” only then do we
have discretion to find the “relevant testimony credible as a
matter of law[.]” Id. Even if all three steps are met, “[t]he
decision whether to remand a case for additional evidence or
simply to award benefits is in our discretion[.]” Id. at 1101–
02 (first alteration in original) (citation and internal
quotation marks omitted).
Because the ALJ found no severe impairment prior to the
date last insured, the ALJ did not proceed past step two in
Washington’s disability analysis. See 20 C.F.R.
§ 404.1520(c). But step two is merely “a de minimis
screening device to dispose of groundless claims.” Edlund
v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (citation
and internal quotation marks omitted). Step two “is not
meant to identify the impairments that should be taken into
account when determining” a claimant’s residual functional
capacity (“RFC”), which proceeds next. Buck v. Berryhill,
869 F.3d 1040, 1048–49 (9th Cir. 2017); see 20 C.F.R.
§ 404.1520 (describing five-step sequential evaluation
process). So, regardless of whether the evidence at issue is
credited, outstanding issues must be resolved before a
WASHINGTON V. KIJAKAZI 25
disability determination can be made. See Treichler, 775
F.3d at 1101.
Further, the district court properly identified
contradictory evidence in the record appropriate for remand.
For instance, the district court noted the conflict between
Washington’s treating doctor and the consulting medical
expert. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
2002) (“The opinions of non-treating or non-examining
physicians may . . . serve as substantial evidence when the
opinions are consistent with independent clinical findings or
other evidence in the record.”). While Washington’s doctor
determined that Washington was “unable to perform even
sedentary work activity” on a consistent basis, the consulting
medical expert concluded that Washington could perform
work-related activities with “certain exertional, postural, and
environmental limitations.” The district court also explained
that it could not determine whether testimony from a
psychiatrist or the disability determination from the
Department of Veterans Affairs (“VA”) proved Washington
was disabled within the regulatory meaning. See Luther v.
Berryhill, 891 F.3d 872, 876–77 (9th Cir. 2018) (discussing
the elements that cause an ALJ to discount the VA
determination); Rounds v. Comm’r Soc. Sec. Admin., 807
F.3d 996, 1006 (9th Cir. 2015) (“[T]he ALJ is responsible
for translating and incorporating clinical findings into a
succinct RFC.”). 8 As a result, the district court did not abuse
8
Washington contends this case is analogous to Garrison v. Colvin, 759
F.3d 995 (9th Cir. 2014). In Garrison, we “found nothing that would
create doubt as to Garrison’s entitlement to the benefits she seeks” and
held all elements of the credit-as-true rule were met. Id. at 1022–23. But
Washington’s administrative record is distinguishable as it contains
several disagreements and inconsistencies. Therefore, the district court’s
decision did not “lie[] beyond the pale of reasonable justification under
26 WASHINGTON V. KIJAKAZI
its discretion in remanding to the Commissioner to resolve
the contested issues.
III. Conclusion
In summary, Washington impliedly consented to
magistrate judge jurisdiction when he was apprised of his
rights and still litigated his case before the magistrate judge.
The district court also did not err when it remanded this case
to the Commissioner of Social Security for further factual
proceedings rather than a payment of benefits.
AFFIRMED.
W. Fletcher, J., concurring
I concur in Judge Clifton’s opinion but write separately
to encourage the district court, and other district courts in the
same position, to revise consent forms for magistrate judge
jurisdiction.
The relevant text of the consent form in this case is as
follows:
This matter is assigned to United States
Magistrate Judge Brian A. Tsuchida for all
purposes, including trial, final entry of
judgment, and direct review by the Ninth
Circuit Court of Appeals.
This language is easily understood by lawyers. But appellant
Victor Washington is not a lawyer. He contends that he did
the circumstances.” See Miskey, 33 F.4th at 570 (citation and internal
quotation marks omitted).
WASHINGTON V. KIJAKAZI 27
not understand that if he consented to the jurisdiction of the
magistrate judge he could not ask a district judge to review
what the magistrate judge did.
It would not be hard to add language to the form to make
its meaning crystal-clear to pro se litigants like Mr.
Washington. Such added language might read: “You have
a right for a United States District Court Judge to hear your
case. Consenting on this form means that you waive that
right, and that Magistrate Judge Tsuchida will take the place
of a United States District Judge in all respects. No District
Judge will supervise or review the work of Magistrate Judge
Tsuchida.”