Dante Burton v. William Schamp

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 18-1174
____________
DANTE BURTON,
Appellant
v.
WILLIAM SCHAMP, RHU Lieutenant; OSMILT JUAREZ,
Sergeant; SHON GILL, Corr. Officer, RHU; D. JOHNSON,
Corr. Officer, RHU; ALBAN, Corr. Officer, RHU; ROBERT
GILMORE, Superintendent; KERI MOORE, Acting
Grievance Officer
____________
No. 19-2494
____________
MUSTAFA WILLIAMS,
Appellant
v.
JOHN WETZEL, Secretary of the Department of Corrections;
BARRY SMITH, Superintendent, SCI Houtzdale;
J. PEARSON, SCI Houtzdale Medical Director;
JOHN/JANE DOE, Department of Corrections Director of
Health Care Services; JOHN/JANE DOE, Kitchen Supervisor
at SCI Houtzdale
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action Nos. 2-17-cv-00895 & 3-17-cv-00192)
Magistrate Judge: Honorable Keith A. Pesto
Argued on April 30, 2021
Before: PHIPPS, NYGAARD and ROTH, Circuit Judges
(Opinion filed: February 10, 2022)
Katherine U. Davis
Tiffany Engsell
Joseph K. Hetrick
Ellen L. Ratigan
Will W. Sachse
Dechert LLP
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Sarah Best (ARGUED)
Zi C. Wang (ARGUED)
University of Pennsylvania Carey Law School
3400 Chestnut Street
Philadelphia, PA 19104
Counsel for Appellants
2
Raymond W. Dorian (ARGUED)
Pennsylvania Department of Corrections
Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
Counsel for Appellee
Michael J. Scainci (ARGUED)
Office of Attorney General of Pennsylvania
Strawberry Square
15th Floor
Harrisburg, PA 17120
Counsel for Amicus Appellee
O P I N I ON
ROTH, Circuit Judge:1
In this consolidated appeal, Dante Burton appeals the
Magistrate Judge’s order dismissing his complaint with
prejudice at the screening stage, before any of the defendants
were served or provided consent to magistrate judge
1
The Court extends its gratitude to Appellants’ pro bono
counsel for their efforts during this appellate proceeding.
3
jurisdiction. In the companion case, Mustafa Williams appeals
both the Magistrate Judge’s dismissal of his claims against two
defendants at the screening stage before they were served or
provided consent to magistrate judge jurisdiction and the
Magistrate Judge’s grant of summary judgment to the third
defendant after she was served but before she consented to
magistrate judge jurisdiction. For the reasons that follow, we
will vacate the orders of dismissal and remand these cases to
the District Court.
I. BACKGROUND
A. The Burton Appeal
On July 5, 2017, Burton filed a civil rights complaint in
the federal district court for the Western District of
Pennsylvania against seven employees of the Pennsylvania
Department of Corrections and he moved to proceed in forma
pauperis (IFP). He alleged that the defendants retaliated
against him after he filed an October 2016 grievance,
concerning his use of the law library. Burton consented to
jurisdiction by a U.S. Magistrate Judge when he filed his
complaint and IFP motion. The case was assigned to a
Magistrate Judge.
Five days later, the Magistrate Judge sua sponte entered
an order dismissing Burton’s complaint for failure to state a
claim. The order, which otherwise did not mention Burton's
IFP motion, then denied the motion to proceed IFP because it
did not comply with the Prison Litigation Reform Act (PLRA).
On August 2, 2017, Burton appealed. We vacated the
Magistrate Judge’s order and remanded because the order
denied Burton’s motion to proceed IFP without analyzing
4
whether he qualified for IFP status.2
Upon remand, the Magistrate Judge again sua sponte
dismissed Burton’s complaint, incorporating his reasoning
from the vacated order.3 Burton appealed. He contends that
the Magistrate Judge lacked authority to dismiss his complaint
under 28 U.S.C. § 636(c)(1) because the unserved defendants4
never consented to magistrate judge jurisdiction.5
B. The Williams Appeal
Burton’s case is consolidated with that of Mustafa
Williams, who filed an action on October 18, 2017, in the
federal district court for the Western District of Pennsylvania
against Secretary Wetzel and Superintendent Smith and several
employees at SCI-Forest and SCI-Houtzdale after staff
members refused to accommodate his special dietary needs.6
Williams alleged claims for deliberate indifference to serious
2
Burton v. Schamp, 707 Fed. Appx. 754, 755 (3d Cir. 2017).
3
The Magistrate Judge also found that no further action was
needed on Burton’s IFP petition because the Magistrate Judge
had already entered an order granting Burton leave to proceed
IFP.
4
Burton did not default on serving the defendants under
Federal Rule of Civil Procedure 4(m).
5
Burton also argues that the Magistrate Judge erred by failing
to consider retaliatory acts by the defendants. Because we find
that the Magistrate Judge did not have the jurisdiction to
dismiss the complaint, we do not reach the merits of his
dismissal order.
6
Consistent with Fed. R. App. P. 43(c), the Court substitutes
Secretary Wetzel with Acting Secretary George Little.
5
medical needs in violation of the Eighth Amendment of the
United States Constitution. He consented to have a magistrate
judge conduct all proceedings. The case was assigned to the
same Magistrate Judge who presided over Burton’s case.
Before any of the defendants were served, the
Magistrate Judge sua sponte on November 13, 2017, dismissed
Wetzel and Smith, with leave to amend. Williams amended
his complaint, providing additional facts about Wetzel and
Smith’s roles, and moved to proceed IFP. On December 1,
2017, the Magistrate Judge granted Williams’ IFP motion and
ordered that the amended complaint be served only on
defendant Janet Pearson, the Corrections Health Care
Administrator at SCI-Houtzdale, to whom Williams
unsuccessfully submitted several grievances about his need for
a medical diet. The Magistrate Judge found that Williams
failed to state a deliberate indifference claim against Wetzel
and Smith and that he alleged only that Wetzel and Smith
learned of Williams’ health concerns through inmate
grievances.
On January 11, 2018, counsel for Wetzel, Smith, and
Pearson waived service and moved to dismiss the amended
complaint on behalf of all three defendants.7 Before the
Magistrate Judge ruled on the motion, Williams filed a second
7
Although the Magistrate Judge’s order had dismissed Wetzel
and Smith without prejudice before they waived service, his
decision to deny their motion to dismiss as moot suggests that
he was treating their prior dismissal as with prejudice.
Accordingly, we will treat the Magistrate Judge’s order
dismissing Wetzel and Smith before they waived service as a
dismissal with prejudice.
6
amended complaint, which all three defendants again moved to
dismiss. On September 26, 2018, the Magistrate Judge
dismissed Wetzel and Smith’s motion as moot because they
had already been dismissed from the case. The Magistrate
Judge denied Pearson’s motion to dismiss on the merits. On
October 16, 2018, the Magistrate Judge ordered defendants
Smith and Wetzel terminated from the case. Pearson filed a
motion for summary judgment on February 26, 2019.
Williams did not respond because he was confined in a
restricted housing unit and unable to prosecute his case.8 The
Magistrate Judge granted Pearson’s motion on April 22, 2019,
and ordered the case closed.
Pearson consented to magistrate judge jurisdiction
almost five months after the Magistrate Judge entered
judgment in her favor. None of the defendants ever consented
to magistrate judge jurisdiction before a final order was
entered. On appeal, Williams (like Burton) contends that the
Magistrate Judge lacked authority to conduct proceedings
because none of the defendants properly consented to
magistrate judge jurisdiction as required by 28 U.S.C. §
636(c).9
8
Williams asked a fellow inmate, Kareem Carter, to write the
Magistrate Judge and inform him of the situation. The
Magistrate Judge’s Order acknowledges receipt of such a
letter.
9
Our jurisdiction is contingent upon the Magistrate Judge’s
lawful exercise of his jurisdiction. See Dewey v. Volkswagen
Aktiengesellschaft, 681 F.3d 170, 180 (3d Cir. 2012). We
review de novo the issue of whether the Magistrate Judge had
authority to enter final orders in these matters. Id.7
II. DISCUSSION
Defendants raise the following issues: First, the Burton
defendants challenge Burton’s standing to object to the
Magistrate Judge’s authority because he waived his right to
object by filing a consent form. The Williams defendants
contend that Williams waived his right on appeal to contest
jurisdiction because he consented to magistrate judge
jurisdiction and did not raise the issue of jurisdiction in the
District Court. Second, the Burton defendants urge us to
interpret Section 636(c)(1) to require the consent only of
parties who have been served. Finally, the Williams
defendants maintain that their consent can be implied from
their actions, and, alternatively, that their post-judgment
consent should apply retroactively.10 We address each issue in
turn.
A. Waiver
The Burton defendants contend that Burton has no
standing to raise the issue of consent to magistrate judge
jurisdiction because he has consented to that jurisdiction,
thereby waiving his right to proceed before an Article III judge.
We disagree.
At the outset of this case, the district court had
jurisdiction over it and referred it to a magistrate judge.
However, the magistrate judge could acquire jurisdiction to
decide the case only by the consent of the parties.11 As we
10
We note that the record indicates that only defendant Pearson
filed a post-judgment consent form.
11
See 28 U.S.C. § 636(c)(1).
8
discuss below, “consent of the parties” does not mean consent
just of the prisoner-plaintiff. Moreover, that jurisdictional
requirement cannot be waived by the parties.12 If the
requirements of Section 636(c)(1) are not satisfied, the
“magistrate judge [is deprived] of jurisdiction over the case”
and we are statutorily deprived of appellate jurisdiction over
the magistrate judge’s orders.13
The reason for this outcome is due to the difference
between a district court judge, an Article III judge, and a
magistrate judge, an Article I judge. Under Article III of the
Constitution, the judicial power of the United States is vested
in the Supreme Court and in such inferior courts as Congress
may establish.14 These “inferior courts” include the United
States District Courts. Article III judges hold their offices for
life, and their compensation may not be diminished throughout
their tenure.15 These attributes of Article III judges are
essential to the judiciary’s independence, which imparts the
qualities of authority and respect to a judgment. However, to
“relieve courts of unnecessary work and to improve access to
the courts,”16 Congress expanded the office of the magistrate
judge, an Article I judge, by enacting the Federal Magistrates
12
Wharton-Thomas v. United States, 721 F.2d 922, 926 (3d
Cir. 1983)
13
Dewey, 681 F.3d at 180 (citation omitted).
14
U.S. Const. Art. III, § 1.
15
Id.
16
Cont'l Cas. Co. v. Dominick D'Andrea, Inc., 150 F.3d 245,
250 (3d Cir. 1998) (quoting Niehaus v. Kan. Bar Ass'n, 793
F.2d 1159, 1165 (10th Cir. 1986) superseded by statute on
other grounds as stated by DeVargas v. Mason & Hanger-Silas
Mason Co., 911 F.2d 1377, 1383–84 (10th Cir. 1990)).
9
Act, 28 U.S.C. Chapter 43. Section 636 of the Act empowers
district court judges to refer certain matters to magistrate
judges.17 But to ensure that “the essential attributes of the
judicial power” remain in Article III, the Act limited the
circumstances under which matters may be finally resolved by
magistrate judges, who fall outside the confines of Article III
because they lack permanency in office and undiminished
compensation.18 “A critical limitation” on the expanded
jurisdiction of magistrate judges is the Act’s requirement that
the parties consent to proceed before a magistrate judge.19 In
other words, the choice of one or more of the parties to forego
a decision by an Article III judge and to have the case heard by
an Article I judge must be knowing and voluntary.
To ensure that this choice is properly made, Section
636(c)(1) of the Federal Magistrates Act provides:
(c) Notwithstanding any provision of law to the
contrary—
(1) Upon the consent of the parties, a
full-time United States magistrate
judge or a part-time United States
magistrate judge who serves as a full-
time judicial officer may conduct any
17
See 28 U.S.C. § 636.
18
Equal Employment Opportunity Comm’n v. City of Long
Branch, 866 F.3d 93, 98 (3d Cir. 2017); see also N. Pipeline
Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 77 (1982)
(quoting Crowell v. Benson, 285 U.S. 22, 51 (1932)).
19
Gomez v. United States, 490 U.S. 858, 870 (1989). See also
Wharton-Thomas, 721 F.2d at 929–30.
10
or all proceedings in a jury or nonjury
civil matter and order the entry of
judgment in the case, when specially
designated to exercise such
jurisdiction by the district court or
courts he serves. 20
Thus, the absence of consent from the parties to proceed before
a magistrate judge, as set out in Section 636(c)(1), implicates
the limits that Congress set on a magistrate judge’s subject
matter jurisdiction.21 Without the parties’ consent, the
magistrate judge, as an Article I judge, simply does not have
jurisdiction to decide the matter.22 In Burton’s case, because
the magistrate judge didn’t have jurisdiction to decide the case,
he could not dismiss it.
As for the Williams defendants, they contend that
Williams waived his right to challenge the Magistrate Judge’s
authority to dismiss his complaint by failing to raise it before
the District Court. However, as we have just pointed out,
subject matter jurisdiction cannot be waived; nor can it be
forfeited by the failure to object to lack of it.23 Because the
Magistrate Judge never acquired jurisdiction of Williams’
case, Williams did not forfeit his right to challenge the
Magistrate Judge’s jurisdiction under Section 636(c)(1) by
20
28 U.S.C. § 636(c)(1) (emphasis added).
21
See id.22
Id.; Wharton-Thomas, 721 F.2d at 929–30.
23
Gonzalez v. Thaler, 565 U.S. 134, 141 (2012); Ins. Corp. v.
Compagnie des Bauxites, 456 U.S. 694, 702 (1982) (“[A] party
does not waive [subject matter jurisdiction] by failing to
challenge jurisdiction early in the proceedings.”).
11
having failed to raise it earlier.24 Lack of jurisdiction can be
raised at any time.25
B. The Meaning of “Parties” under Section 636(c)(1)26
The Burton defendants contend that, in prisoner
litigation, only the consent of the prisoner is required for a
magistrate judge to gain jurisdiction to screen the complaint.
They reason that the Act was designed to increase judicial
efficiency and alleviate the burdens on Article III judges by
providing an additional tier of judicial officers who can help
Article III judges carry out certain duties. Further, they assert
that screenings were developed under the PLRA to increase
judicial efficiency and curb abusive tort, civil rights, and
conditions of confinement litigation through several reforms,
including allowing a magistrate judge to screen and dismiss
frivolous complaints.
Because screening often occurs before service of
process, defendants conclude that the consent of the prisoner
alone will satisfy the requirements of Section 636(c)(1) in the
prison litigation context. Alternatively, they propose that we
interpret the term “parties” to require consent only from parties
who have been served. According to defendants, any other
interpretation runs counter to the purpose of the Act and of the
PLRA because it would preclude magistrate judges from
screening complaints without consent from both parties, thus
24
See Gonzalez, 565 U.S. at 141.
25
Id.26
We discuss the term “parties” solely in relation to its
meaning in Section 636(c)(1), and do not take an opinion on
the meaning of “parties” in other contexts.
12
reducing efficiency. We decline to adopt these proposed
interpretations.
As always, statutory interpretation begins with an
examination of the statute’s plain language.27 The text
provides that magistrate judge jurisdiction is conferred “upon
consent of the parties.”28 The plain language of the statute
requires that the consent of multiple parties, as opposed to a
single party, be acquired before a magistrate judge can conduct
any or all proceedings.
The defendants rely on the legislative history of a
separate statute, the PLRA, to support their position that the
consent only of the plaintiff is needed in the prison litigation
context. However, statutory interpretation that furthers the
policy or the legislative history of one statute should not
control the interpretation of a different statute’s text,
particularly where it runs counter to the plain, unambiguous
meaning of that text.29
Section 636(c)(1) clearly states that the “parties” must
consent.30 Congress’s use of the term’s plural form in this
Section indicates that Congress intended to permit a
jurisdictional transfer to a magistrate judge only when more
than one party consented. If Congress had intended to make
27
Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d
199, 210 (3d Cir. 2008) (citation omitted).
28
28 U.S.C. § 636(c)(1).
29
See S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d
248, 259 (3d Cir. 2013) ("Legislative history has never been
permitted to override the plain meaning of a statute.”).
30
28 U.S.C § 636(c)(1).
13
the consent of only one party sufficient to confer magistrate
judge jurisdiction, it would have used the singular “party” in
Section 636(c)(1). Defendants’ interpretation that “parties”
refers only to a plaintiff in the prison litigation context cannot
stand in the face of the Act’s unambiguous text.
The second proposed interpretation, that “parties”
includes only those parties, who have been served with the
complaint, also lacks support in the statutory text and
precedent. The term “party” or “parties” is a legal term of
art,31 “and it is a cardinal rule of statutory construction that,
when Congress employs a term of art, it presumably knows and
adopts the cluster of ideas that were attached to each borrowed
word in the body of learning from which it was taken.”32 The
Supreme Court has defined the term: “In general, “[a] ‘party’
to litigation is ‘[o]ne by or against whom a lawsuit is brought’
or one who ‘become[s] a party by intervention, substitution, or
third-party practice.’”33 This definition does not distinguish
parties who are named, but not served, from parties who have
been named and served.
At least two of our sister courts of appeals have reached
this conclusion. In Williams v. King,34 the Ninth Circuit Court
of Appeals found that a plaintiff’s consent alone did not vest
the magistrate judge with jurisdiction over a civil rights
31
Williams v. King, 875 F.3d 500, 503 (9th Cir. 2017) (citation
omitted).
32
F.A.A. v. Cooper, 566 U.S. 284, 292, (2012) (internal
quotation marks and citation omitted).
33
See Smith v. Bayer Corp., 564 U.S. 299, 313 (2011) (internal
citations omitted).
34
875 F.3d 500, 504 (9th Cir. 2017).
14
complaint and concluded that the absence of consent from
unserved defendants deprived the magistrate judge of
jurisdiction to dismiss the complaint as to them under the
PLRA.35
In Coleman v. Labor and Industry Review
Commission,36 the Seventh Circuit Court of Appeals addressed
a similar question: “whether a defendant who has not yet been
served is one of the ‘parties’ who must consent for purposes of
section 636(c)(1).”37 Coleman involved a pro se litigant who
filed a complaint along with an IFP motion that, before the
defendants had been served, was screened and dismissed by a
magistrate judge for failure to state a claim. Coleman
appealed, and the court of appeals considered whether the
magistrate had exceeded his authority under Section 636(c)(1)
when he dismissed the complaint for failure to state a claim
before obtaining the consent of “the parties (plural) to act.”38
The court held that at least one party from each side of the “v.”
must consent to a magistrate judge’s jurisdiction before a
magistrate judge may dismiss a complaint for failure to state a
claim at the screening stage.39 It reasoned that the text of the
statute requires the consent of both parties because it uses the
term’s plural form, noting that this interpretation follows the
general use of the term “parties” throughout the Federal Rules
of Civil Procedure.40 The court also noted that there is “no
ambiguity in the meaning of the term ‘parties’ [in Section
35
Id. at 505.
36
860 F.3d 461 (7th Cir. 2017).
37
Id. at 468.
38
Id. at 465 (internal quotation marks omitted).
39
Id. at 470.
40
Id. at 471.
15
636(c)]: It refers to the names on both sides of the ‘v,’ without
regard to events such as service of process.”41
We agree with the interpretation of our sister courts.
“The fact that it is the plaintiff who commences the suit does
not mean that the other parties named in the complaint do not
count as ‘parties’ prior to service of process.”42 Accordingly,
in order to confer Article III judicial authority upon a
magistrate judge, we read Section 636(c)(1)’s reference to the
consent by the “parties” to require the consent by any party
directly affected by an order or a judgment issued by that
magistrate judge.43
C. Whether Consent Can Be Implied from the Conduct of
Defendants
The Williams defendants argue that their consent to the
Magistrate Judge’s jurisdiction can be implied from their
actions during the litigation. Although the Magistrate Judge
had already sua sponte dismissed defendants Wetzel and
41
Id. at 473.
42
Id. at 471. Such a rule may not be as rigorous as it appears.
The magistrate judge can easily obtain consent from any party
entering an appearance. If that is not possible, the district judge
always has jurisdiction to dismiss a party or to otherwise rule
as necessary.
43
No consent from a defendant is necessary where a plaintiff
has failed to effect service on the defendant in the time
prescribed by Fed. R. Civ. P. 4(m). Thus, consent from a
defendant is unnecessary where a plaintiff chooses not to serve
the defendant or is unable to serve the defendant.
16
Smith, counsel for all three defendants appeared and moved to
dismiss Williams’ complaint on behalf of all defendants.
Relying on the Supreme Court’s decision in Roell v. Withrow,44
the Williams defendants contend that we can infer their
voluntary consent from this conduct since they knew they were
being sued.45 We do not agree. In Roell, the Supreme Court
decided whether “consent can be inferred from a party’s
conduct during litigation.”46 There, the district court referred
the case to the magistrate judge; the clerk of court then sent the
referral to the defendants “along with a summons directing
them to include [a written statement indicating whether] [a]ll
defendants consent[ed] to the jurisdiction of a [magistrate
judge].”47 Only one defendant gave written consent to the
referral, while the remaining defendants “filed answers but said
nothing about the referral.”48
After the case proceeded to judgment before the
magistrate judge, the plaintiff appealed; the court of appeals
remanded the case to the district court to determine whether the
44
538 U.S. 580, 586 (2003).
45
Under Section 636(c)(1), we are permitted to imply consent
if the magistrate judge is a full-time magistrate judge or a part-
time magistrate judge who serves as a full-time judicial officer.
If the magistrate judge is simply a part-time magistrate judge,
Section 636(c)(1) requires a specific written request that the
part-time magistrate judge exercise jurisdiction in a case. The
Magistrate Judge here is a part-time magistrate judge who
serves as a full-time judicial officer. The consent to his
jurisdiction could therefore be implied.
46
Roell, 538 U.S. at 582.
47
Id. at 583.
48
Id.17
parties had consented to proceed before the magistrate judge.49
Only after remand did the remaining defendants file a letter of
consent with the district court.50 The district court concluded
that, although the defendants participated voluntarily in the
entire proceedings before the magistrate judge,51 court of
appeals precedent indicated that consent could not be implied
by the parties’ conduct.52 Accordingly, the district court held
that the failure of the remaining defendants to provide “express
consent before sending their postjudgment letter to the District
Court meant that” the magistrate judge lacked jurisdiction.53
The court of appeals agreed and held that the lack of consent
and errors in the letter of referral to the magistrate judge are
jurisdictional errors that cannot be waived.54
The Supreme Court reversed on the issue of lack of
consent pursuant to Section 636(c)(1). The Court observed
that where the referral is made to a magistrate judge, the statute
suggests that a defect in the referral “does not eliminate that
magistrate judge’s ‘civil jurisdiction’ under [Section]
636(c)(1) as long as the parties have in fact voluntarily
consented.”55 The Court concluded that Congress intended to
permit implied consent under certain circumstances but refused
to adopt a bright-line rule as to when implied consent should
49
Id.50
Id. at 583–84.
51
The record showed that these defendants “voiced no
objection when, at several points, the Magistrate Judge made it
clear that she believed they had consented.” Id. at 584.
52
Id.53
Id.54
Id. at 585.
55
Id. at 587 (internal citations omitted).
18
be accepted.56 Instead, the Court held that “the better rule is to
accept implied consent where, as here, the litigant or counsel
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.”57
Applying these principles to Williams’ appeal, we
conclude that the consent of defendants Wetzel, Smith, and
Pearson cannot be implied from their conduct. Section
636(c)(2) requires that the Clerk of Court notify the parties of
their right to refuse to proceed before a magistrate judge, but
there is no indication in the record that the defendants ever
received such a notice. As Williams notes, the record here
shows only that the defendants were aware of being sued. The
Williams defendants do not point to anything in the record
showing that they were made aware of the need to consent and
their right to refuse to do so. Under these circumstances, Roell
bars us from inferring, from the defendants’ conduct, their
consent to proceed before a magistrate judge.58
56
Id. at 589–90 (“On the one hand, the virtue of strict insistence
on the express consent requirement embodied in § 636(c)(2) is
simply the value of any bright line: here, absolutely minimal
risk of compromising the right to an Article III judge. But there
is another risk, and insisting on a bright line would raise it: the
risk of a full and complicated trial wasted at the option of an
undeserving and possibly opportunistic litigant.”).
57
Id. at 590 (emphasis added).
58
See Phillips v. Beierwaltes, 466 F.3d 1217, 1221 (10th Cir.
2006) (“Because there was no notification to the Beierwaltes
or their counsel of the need to consent or the right to refuse
consent, Roell does not permit us to infer consent to the
magistrate judge's authority to act for the district court.”).
19
D. Whether Pearson’s Post-Judgment Consent Applies
Retroactively
The final question is whether defendant Pearson’s post-
judgment consent should apply retroactively.59 The Williams
defendants urge us to hold that post-judgment consent should
apply retroactively to a magistrate judge’s entry of a final
order. They contend that the voluntariness of the parties’
consent to proceed before a magistrate judge is not in dispute
and that Section 636(c) does not require a specific time for
consent. Thus, as long as the voluntariness of consent is not at
issue, it does not matter when a consent form was filed.
Defendants rely on several decisions from our sister
courts of appeals. These cases are inapposite. Some do not
support the defendants’ proposition;60 others do not
sufficiently analyze the issue.61 Accepting post-judgment
59
We note that defendants Wetzel and Smith did not file an
express post-judgment consent form.
60
For example, the Ninth Circuit Court of Appeals in Kofoed
v. International Broth. of Elec. Workers, Local 48, 237 F.3d
1001, 1004 (9th Cir. 2001), accepted the parties’ written
consent forms that were filed after the magistrate entered
judgment and the case was on appeal. However, that
conclusion hinged on the fact that “the record reflects that the
parties gave express oral consent to the magistrate judge’s
jurisdiction while they were before the magistrate judge and
before he made a dispositive ruling.” Id.61
The Seventh Circuit Court of Appeals’ decision in King v.
Ionization Intern., Inc., 825 F.2d 1180, 1185 (7th Cir. 1987),
20
consent, where there has been no prior consent (express or
implied), is not permitted by the statutory text and raises
constitutional problems under Article III for Section 636(c)(1)
referrals.
In Roell, the majority found that Congress intended to
accept implied consent from the parties’ conduct during the
litigation but declined to address “whether express
postjudgment consent would be sufficient in a case where there
was no prior consent, either express or implied.”62 This is
precisely the issue presented here.
The importance of the timing of consent is implicit in
accepted the parties’ post-judgment consent to the magistrate
judge’s jurisdiction but did not fully analyze whether such
consent was proper beyond stating that the “statute does not
require a specific form or time of consent.” Id; see also Drake
v. Minnesota Min. & Mfg. Co., 134 F.3d 878, 883 (7th Cir.
1998) (same). Similarly inapposite is the defendants’ reliance
on a footnote in the Eleventh Circuit Court of Appeals’
decision in Rembert v. Apfel, 213 F.3d 1331, 1335, n.1 (11th
Cir. 2000) (“Parties can consent even after judgment.”) (citing
General Trading Inc. v. Yale Materials Handling Corp., 119
F.3d 1485, 1496–97 (11th Cir. 1997)). First, Rembert is no
longer good law in light of Roell. Chambless v. Louisiana-
Pacific Corp., 481 F.3d 1345, 1350 (11th Cir. 2007). Second,
Rembert’s note relied on the Eleventh Circuit Court of
Appeals’ decision in General Trading Inc. v. Yale Materials
Handling Corp., 119 F.3d 1485, 1496–97 (11th Cir. 1997),
which relied on the Seventh Circuit Court of Appeals’ decision
in King.
62
Roell, 538 U.S. at 591, n.8.
21
the fact that a non-Article III judicial officer does not have
decision-making authority until the parties consent.
Notwithstanding the valuable contributions that magistrate
judges provide to the efficiency of the federal judiciary,
allowing a magistrate judge to “assume the role of a district
judge,” as permitted by Section 636(c)(1),63 before obtaining
the consent of the named parties (whether express or implied)
creates constitutional problems for Section 636(c)(1): it would
permit a non-Article III officer to independently exercise
Article III powers (by entering a final order that is not
reviewable by the district court) before he is given the authority
to do so.
By its very terms, post-judgment consent suggests that
a non-Article III officer exercises a core Article III power
before he has obtained the authority to do so. This puts the cart
before the horse. Such consent cannot change the fact that, at
the time a judgment was entered, Article III powers were
exercised by a non-Article III officer who did not have the
authority to do so. This concern is not present in cases of
implied consent as consent is inferred from the parties’ conduct
during the proceedings; there, a magistrate judge is robed with
Article III authority through implied consent that is inferred
from the parties’ conduct before he exercises a core Article III
power by entering a final order that is not reviewable by district
courts. That is not the case with post-judgment consent.
Moreover, with post-judgment consent, we do not know
if any or all of the parties were aware during the proceeding of
the need of knowing and voluntary consent. Neither do we
63
Brook, Weiner, Sered, Kreger & Weinberg v. Coreq, Inc., 53
F.3d 851, 852 (7th Cir. 1995).
22
want to create a situation where a losing party, after the
conclusion of a trial, can claim lack of consent in order to
nullify the proceeding.
Although implied consent does not run afoul of Article
III, post-judgment consent may. It is well settled that federal
courts should avoid a statutory interpretation that creates
constitutional issues.64 Thus, we feel compelled to reject
defendants’ position that post-judgment consent applies
retroactively under Section 636(c)(1). Accordingly, we hold
that defendants’ post-judgment consent could not satisfy the
requirements of Section 636(c)(1).
III. CONCLUSION
For the above-mentioned reasons, we conclude that the
Magistrate Judge had no authority to dismiss Williams’ and
Burton’s complaints without obtaining the consent to
magistrate judge jurisdiction not only of the prisoner-plaintiffs
but of the defendants being dismissed from the case or granted
summary judgment. As to implied consent, absent notice to
the parties of the need for consent and their ability to withhold
it, consent cannot be implied from the parties’ conduct here.
Where the consent requirement of Section 636(c)(1) is not met,
the appropriate procedure under Section 636(b)(1)(C) is for the
Magistrate Judge to issue a report and recommendation to the
District Court, which is vested with the authority to dismiss the
64
Clark v. Martinez, 543 U.S. 371, 380–81 (2005) (“When
deciding which of two plausible statutory constructions to
adopt, a court must consider the necessary consequences of its
choice. If one of them would raise a multitude of constitutional
problems, the other should prevail.”).
23
parties and enter final judgment in the matter. Accordingly,
we will vacate the orders dismissing Burton’s complaint and
granting dismissals and summary judgment in Williams’ case
and remand the cases to the District Court for further
proceedings consistent with this opinion.
24